1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, being diagnosed with retroviral syndrome and major depression. The applicant was non-deployable, was being treated by a VA medical facility, and continues to receive treatment, which is detrimental to the applicant's health. Due to the severity and confidential nature of the condition, the applicant was advised to inform only those who needed to know, which did not include the applicant's NCOIC. b. Board Type and Decision: In a records review conducted on 19 September 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's HIV diagnosis outweighing the applicant's unsatisfactory participation. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, Paragraph 13, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. Please see Section 9 of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Unsatisfactory Participation / AR 135- 178, Chapter 13 / NA / NA / General (Under Honorable Conditions) b. Date of Discharge: 19 March 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 10 October 2012 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant has accrued at least 9 unexcused absences in a one-year period. On 15 October 2012, the applicant's commander mailed the applicant the notification via certified mail, with a suspense of 30 days to acknowledge the notice and rights. Commander's Report, 5 December 2012, reflects the applicant was notified of the proposed separation via certified mail on 15 October 2012. The applicant was informed of the following reasons: The applicant failed to satisfactorily participate in the monthly scheduled Battle Assemblies with bis/her unit. The applicant did not provide a valid reason for the absence from any of the scheduled training missed which indicated it is not feasible or appropriate to accomplish other disposition of this case. The applicant did not provide a response to the memorandum of notification. The commander believes the applicant does not have the potential to perform useful service if ordered to Active Duty to meet mobilization requirements. The applicant was declared an unsatisfactory participant with no future potential in the U.S. Army Reserve, when on or about 14 July 2012, the applicant, without any cogent or emergency reasons, received the ninth unexcused absence. The applicant's decision to miss nine (9) unit training assemblies constitutes a significant departure from the conduct expected of Soldiers. The objective of the USAR program is to sustain a well-disciplined, mission capable force ready for mobilization. As deploy-ability is dependent upon Soldiers satisfactorily participating with their units of assignment, the applicant's failure to do so is incompatible with service in the U.S. Army Reserve training assemblies, which constitutes a significant departure from the conduct expected of Soldiers. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: The applicant failed to respond to the notification of separation, thereby waiving right to counsel. (5) Administrative Separation Board: The applicant failed to respond to the notification of separation, thereby waiving right to an administrative separation board. (6) Separation Decision Date / Characterization: 5 March 2013 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 15 January 2008 / 6 years b. Age at Enlistment / Education / GT Score: 31 / some college / 100 c. Highest Grade Achieved / MOS / Total Service: E-5 / 25B20, IT Specialist, / 18 years, 2 months d. Prior Service / Characterizations: RA, 18 January 1995 - 14 January 1999 / HD USAR,15 January - 5 March 2005 / NA AD, 6 March 2008 - 21 December 2008 / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (8 May 2008 - 16 November 2008) f. Awards and Decorations: AAM-2, AGCM, NDSM, GWOTSM, ICM-CS, ASR, AFRMM / The applicant's AMHRR reflects service in Korea (KDSM), however, the award is not reflected on the DD Form 214. g. Performance Ratings: 1 January 2009 - 31 December 2009 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Commander's Report as described in previous paragraph 3c. The applicant provides a copy of a Statement of medical examination and duty status 13 January 2011, which reflect the applicant was diagnosed with retro viral syndrome while in training. Letter of Instructions - Unexcused Absence, dated 17 November 2011, reflects the applicant was absent from a scheduled unit training assembly (UTA) or a multiple unit training assembly (MUTA) for the following periods: 19 May 2012 - 20 May 2012(MUTA 1 and 2) 16 June 2012- 17 June 2012 (MUTA 1 and 2) 14 July 2012 - 15 July 2012 (MUTA 1 and 2) Affidavit of Service by Mail, reflects the Letter of Instructions, dated 22 May 2012 , was mailed to the applicant via certified mail on 24 May 2012. Affidavit of Service by Mail, reflects the Letter of Instructions, dated 17 June 2012, was mailed to the applicant via certified mail on 20 June 2012. Affidavit of Service by Mail, reflects the Letter of Instructions, dated 25 July 2012, was mailed to the applicant via certified mail on 30 July 2012. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: A copy of an extract of the medical records 14 March 2011, reflects a diagnosis of depression. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: Online application; Memorandum 28 January 2011; DA Form 2173; medical record; seven Memorandum for Records. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 135-178 prescribes the policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the United States (ARNGUS) and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. (1) Paragraph 2-9a prescribes an honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (2) Paragraph 2-9b, prescribes, if a Soldier's service has been honest and faithful, it is appropriate to characterize that service as general (under honorable conditions). Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the Soldier's conduct or performance of duty outweigh positive aspects of the Soldier's military record. (3) Chapter 12 (previously Chapter 13), provides in pertinent part, that individuals can be separated for being an unsatisfactory participant. Soldier is subject to discharge for unsatisfactory participation when it is determined that the Soldier is unqualified for further military service because: The Soldier is an unsatisfactory participant as prescribed by AR 135- 91, chapter 4; Attempts to have the Soldier respond or comply with orders or correspondence. (4) Paragraph 12-3, prescribes the service of Soldiers separated under this chapter will be characterized as honorable or under honorable conditions as determined under chapter 2, section III, unless an uncharacterized description of service is warranted under paragraph 2-11. (5) Chapter 13 (previously Chapter 14), provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memorandums. Secretarial separation authority is normally exercised on a case-by-case basis. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends being diagnosed with retroviral syndrome and major depression. The applicant provided a statement of medical examination and duty status 13 January 2011, which reflect the applicant was diagnosed with retro viral syndrome. Also, an extract of the medical records 14 March 2011, reflects a diagnosis of depression. The applicant contends due to the severity and confidential nature of the condition, the applicant was advised to inform only those who needed to know, which did not include the applicant's NCOIC. The applicant did not submit any evidence, other than the applicant's statement, to support the contention 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: PTSD, Other Specified Trauma and Stress Related Disorder, Depression NOS. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found trauma related disorder associated with combat deployment. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that the applicant is 70 percent SC for a Trauma Related Disorder; either PTSD or Other Specified Trauma Related Disorder associated with combat deployment. As there is an association between PTSD and avoidance behavior, there is a nexus between the applicant's misconduct characterized by Unsatisfactory Participation (e.g., missing at least 9 battle assemblies) and her diagnosis such that the misconduct is mitigated by the disorder. Further, records suggest that during the period of missed battle assemblies the applicant was still attempting to adjust to live as an HIV positive individual, had yet to share the information beyond two people, and was dealing with shame, and symptom consistent with depression. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant's Post Traumatic Stress Disorder and HIV diagnosis outweighed the applicant's Unsatisfactory Participation. b. Response to Contention(s): (1) The applicant contends being diagnosed with retroviral syndrome and major depression. The Board liberally considered this contention and determined that the applicant's Post Traumatic Stress Disorder and retroviral syndrome diagnosis outweighed the applicant's Unsatisfactory Participation. Therefore, a discharge upgrade is warranted. (2) The applicant contends due to the severity and confidential nature of the condition, the applicant was advised to inform only those who needed to know, which did not include the applicant's NCOIC. The Board considered this contention during proceedings but ultimately did not address the contention due to an upgrade being granted based on the applicant's Post Traumatic Stress Disorder and retroviral syndrome diagnosis outweighing the applicant's Unsatisfactory Participation. c. The Board determined the discharge is inequitable based on the applicant's HIV diagnosis outweighing the applicant's unsatisfactory participation. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, Paragraph 13, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's Post Traumatic Stress Disorder and retroviral syndrome diagnosis outweighed the applicant's Unsatisfactory Participation. Thus the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. 10. BOARD ACTION DIRECTED: a. Issue a New Separation Order: Yes b. Change Characterization to: Honorable c. Change Authority to: AR 135-178 Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210001602 1