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 under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, at the time of the discharge, the applicant was young, irresponsible, and going through a horrible divorce and a child custody battle which put the applicant in a bad place. The applicant's ex-spouse was keeping their child away and would not allow any communication with the child even though it was court ordered. The applicant sank to an all-time low and did not care about anything. The applicant states, it was eight years ago and now life has change for the better. The applicant has full custody of child and re- married and has another little one. The applicant has worked for the same company for five years now, but due to the discharge the applicant is stuck at a low-level position. The applicant states a discharge upgrade will ensure better employment. The applicant states the leadership attempts to contact the applicant were sent to the wrong address. The leadership had the applicant's new address and the only time the applicant was contacted it was too late. b. Board Type and Decision: In a records review conducted on 2 March 2023, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the applicant's service record, post-service conduct, and length of time since the discharge mitigating the applicant's Unsatisfactory Participation basis for separation. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. The Board determined the narrative reason and authority were proper and equitable and voted not to change them. 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 / Under Other Than Honorable Conditions . b. Date of Discharge: 23 July 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 27 March 2008 (2) Basis for Separation: The notification of initiation of separation proceedings is void from the applicant's Army Military Human Resource Record (AMHRR). The Commander's report, dated 2 May 2008, reflects the applicant was notified via certified mail on 27 March 2008. The applicant was declared an unsatisfactory participant with no future potential in the U.S. Army Reserve when on or about 22 February 2008, the applicant, without any cogent or emergency reasons, received a ninth unexcused absence. This Soldier's decision to miss nine- 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 deployability 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. (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: 21 June 2008 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 June 2007 / 1 year b. Age at Enlistment / Education / GT Score: 22 / High School Graduate / 105 c. Highest Grade Achieved / MOS / Total Service: E-3 / 19D10 R4, Calvary Scout / 2 years, 6 months, 2 days d. Prior Service / Characterizations: RA, 27 September 2005 - 16 February 2007 / HD (Break in Service) e. Overseas Service / Combat Service: Hawaii / None f. Awards and Decorations: AGCM, NDSM, GWOTSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The Commander's report dated 21 June 2008 reflects The notice was sent via certified mail, return receipt requested, to the most recent address furnished by the Soldier as an address for receipt or forwarding of official mail. A PS Form 3811 acknowledgment form indicated the applicant received the notice on 27 March 2008. As of this date, the applicant had failed to submit a reply. In accordance with AR 135-178, paragraph 3-12, this failure to submit a reply within 30 days of receipt of the notice constitutes a waiver of the right to respond. i. Lost Time / Mode of Return: NIF j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: Online application. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has full custody of child and has re- married with another child and has worked for the same company for five years. 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 sets forth 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 and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. The separation policies throughout the different Chapters in this regulation promote the readiness of the Army by providing an orderly means to judge the suitability of persons to serve on the basis of their conduct and their ability to meet required standards of duty performance and discipline. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, and convictions by civil authorities. (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. 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 record of service, the issues and documents submitted with the application were carefully reviewed. The applicant's Army Military Human Resource Record (AMHRR) is void of the complete specific facts and circumstances concerning the events which led to the applicant's discharge from the Army Reserve. The applicant's AMHRR does contain a properly constituted discharge order: Orders 08-176-00013, dated 24 June 2008. The orders indicate the applicant was discharged under the provisions of AR 135-178, with a characterization of service of under other than honorable conditions. The applicant contends the leadership attempts to contact the applicant was sent to the wrong address and the leadership had the applicant's new address and the only time the applicant was contacted it was too late. The Commander's report, dated 21 June 2008, reflects, the notice was sent via certified mail, return receipt requested, to the most recent address furnished by the Soldier as an address for receipt or forwarding of official mail. A PS Form 3811 acknowledgment form indicated the applicant received the notice on 27 March 2008. As of this date, the applicant had failed to submit a reply. In accordance with AR 135-178, paragraph 3-12, this failure to submit a reply within 30 days of receipt of the notice constitutes a waiver of the right to respond. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. The applicant contends youth and immaturity affected the applicant's behavior at the time of the discharge. The AMHRR shows the applicant met entrance qualification standards to include age. The applicant contends having full custody of the child and has re-married and now has a second child; and worked for the same company for five years. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. 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: Major Depression, Panic Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed in service with Major Depression and Panic Disorder during one BH visit that occurred two years prior to the misconduct that led to his separation. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the applicant was diagnosed in service with Major Depression and Panic Disorder during one BH visit that occurred two years prior to the misconduct that led to separation. Applicant is not service connected by the VA, and there is no evidence to support that either BH condition existed at the time of the misconduct that led to separation or contributed to the misconduct. Therefore, there is no medical mitigation. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the available evidence did not support a conclusion that the applicant's Major Depression and Panic Disorder outweighed the basis for applicant's separation - Unsatisfactory Participation - for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends the leadership attempts to contact the applicant were sent to the wrong address. The leadership had the applicant's new address and the only time the applicant was contacted it was too late. 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 service record, post-service conduct, and length of time since the discharge mitigating the applicant's Unsatisfactory Participation basis for separation. However, the Board determined that an upgrade to Honorable was not warranted as outlined in part 9d. (2) The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board considered this contention but does not grant relief to gain employment or enhance employment opportunities. (3) The applicant contends youth and immaturity affected the applicant's behavior at the time of the discharge. 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 service record, post-service conduct, and length of time since the discharge mitigating the applicant's Unsatisfactory Participation basis for separation. (4) The applicant contends having full custody of child and has re-married with a second child; and working for the same company for five years. The Board considered this contention and accordingly voted to upgrade the discharge based on applicant's service record, post- service conduct, and length of time since the discharge mitigating the applicant's Unsatisfactory Participation basis for separation. c. The Board determined that the characterization of service was inequitable based on the applicant's service record, post-service conduct, and length of time since the discharge mitigating the applicant's Unsatisfactory Participation basis for separation. Accordingly, the Board voted to grant partial relief. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to General, Under Honorable Conditions based on the applicant's service record, post-service conduct, and length of time since the discharge mitigating the applicant's Unsatisfactory Participation basis for separation. Thus the prior characterization is no longer appropriate. Further, the Board found an upgrade to Honorable not supported by the evidence of record. The Honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of accept conduct and performance of duty or is otherwise meritorious that any other characterization would be clearly inappropriate. The Board found that the applicant's service, given the nature of the misconduct is not fully outweighed by the mitigating factors, was not sufficiently meritorious to warrant an Honorable discharge. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code, as the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under Honorable Conditions c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change 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 AR20210002205 1