1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: Yes 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. Counsel on behalf of the applicant seeks relief contending, in effect, in the interests of justice, the applicant’s discharge should be upgraded to fully honorable. The applicant is a combat veteran who served honorably for over three years with no incidents of misconduct prior to the minor acts leading to the discharge. For most of the service (from April 2007 to April 2010), the applicant was recognized for exemplary service and earned an ARCOM during Operation Iraqi Freedom, and quickly rose to becoming a noncommission officer. In mid-2010, the applicant experienced personal difficulties which impacted the ability to perform the duties when the spouse requested a divorce in July 2010, and shortly thereafter, moved away from North Carolina. The added family conflict resulted in the diagnosis of depression, adjustment disorder with anxiety and depressed mood, and adjustment insomnia, and was prescribed “sedating psychiatric medications” and given a medical profile of being “non-deployable” because of limiting psychiatric conditions and medication. The applicant is trying to get the life in order but faces unnecessary obstacles because of the unnecessary punitive General discharge. The applicant was inequitably discharged for violating Article 87 of the UCMJ, which requires a movement be missed through neglect or design. The applicant missed a movement because of relying on a medical diagnosis based on the result of significant and well-documented mental health disorders. DoD Instruction (DODI) 6490.07 Encl 3(h) would have prohibited the applicant from deploying with the unit. There is substantial doubt the applicant would have received the same discharge if DoDI 6490.07 had been considered during the separation proceedings. The separation process initiated beginning 22 February 2011, should not have considered an alleged misconduct occurring after that date in determining the discharge classification. The applicant’s otherwise laudable military and combat service renders the discharge inequitably harsh. Given the significant mitigating factors surrounding the applicant’s missed training and the procedural deficiencies inherent in the separation proceedings, the discharge is a disproportionately severe penalty, and should be modified in the interest of equity. The applicant working full-time as a night manager at a pizza shop, dedicates the free time to seeing the applicant’s young child. The discharge has made establishing a productive life after service difficult; prevented the applicant from receiving educational benefits; diminished the opportunities to find gainful employment; and it serves as a reminder of a difficult period in the life. Although eligible for some benefits, the applicant is deprived of other earned benefits as a combat veteran, which in fairness and equity, the applicant should receive. The counsel further details the contentions in an allied legal brief provided with the application. b. Board Type and Decision: In a records review conducted on 15 February 2023, and by a 5 - 0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board’s decision. (Board member names available upon request) 2. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 6 May 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 6 April 2011 (2) Basis for Separation: The applicant was informed of the following reasons: On 17 February 2011, the applicant received a Field Grade Article 15 for three missed movements. On 29 March 2011, the applicant was absent without leave and remained absent until 6 April 2011. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: In an undated memorandum / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 April 2007 / 4 years, 20 weeks b. Age at Enlistment / Education / GT Score: 24 / High School Graduate / 127 c. Highest Grade Achieved / MOS / Total Service: E-5 / 92F2P, H7 Petroleum Supply Specialist / 4 years, 19 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (5 December 2008 – 20 November 2009) f. Awards and Decorations: ARCOM, AGCM, NDSM, GWOTSM, ICM-CS, ASR, OSR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Service School Academic Evaluation Report, dated 11 February 2010, reflects the applicant achieved course standards for the Warrior Leaders Course. Four Developmental Counseling Forms for missing movement and failing to obey a lawful order. FG Article 15, dated 17 February 2011, for missing movement on 8 October 2010, at 0300 hours and 1715 hours, and on 21 October 2010. The punishment consisted of a reduction to E-4; forfeiture of $1,061 pay per month for two months; extra duty and restriction for 45 days; and an oral reprimand. Two Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY),” to “Absent Without Leave (AWOL),” effective 29 March 2011, and from “AWOL” to “PDY,” effective 6 April 2011. i. Lost Time / Mode of Return: 8 days (AWOL 29 March 2011 – 5 April 2011) / Surrendered to Military Authorities j. Diagnosed PTSD / TBI / Behavioral Health: Physical Profile, dated 13 October 2010 with an expiration date of 10 January 2011, reflects the applicant had the following medical conditions: Adjustment disorder with anxiety and depressed mood. Report of Behavioral Health Evaluation (BHE), dated March 2011, reflects the applicant was mentally responsible with a clear-thinking process and had the mental capacity to understand and participate in the proceedings. The applicant was psychiatrically cleared for any administrative actions deemed appropriate by command. The AXIS I diagnosis reflects an “Adjustment Disorder with Anxiety and Depressed Mood Occupational Problems.” Report of Medical Examination, dated 23 March 2011, the examining medical physician noted in the comments section: Adjustment Disorder with Depression. Chronological Record of Medical Care, dated 23 March 2011, reflects the applicant was diagnosed with Suicide Ideation; Adjustment disorder with anxiety and depressed mood; Depression; and Adjustment insomnia. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and attorney brief with listed enclosures, exhibits A through D. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has obtained employment as a full-time night manager of a Papa John’s Pizza shop. 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 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and 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. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (6) Paragraph 14-12c prescribes a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. e. Army Regulation 635-5-1, Separation Program Designator (SPD) Codes, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKQ” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1 defines reentry eligibility (RE) codes: RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. 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 Resource Record (AMHRR) of service, the issues, and documents submitted with the application were carefully reviewed. The applicant contends exemplary service for most of the service, including a combat tour, and no incidents of misconduct prior to the minor acts leading to the discharge. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant claims the offenses leading to the discharge were minor. The AMHRR indicates the applicant committed many discrediting offenses. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends having experienced personal difficulties, the spouse requesting a divorce, impacted the ability to perform the duties and caused behavioral health issues. The applicant’s AMHRR contains documentation which supports a diagnosis of in-service depression and an “Adjustment Disorder with Anxiety and Depressed Mood Occupational Problems.” The record shows the applicant underwent a behavioral health evaluation (BHE) in March 2011. The BHE was considered by the separation authority. The applicant contends being inequitably discharged because of procedural errors constituted injustices based on failing to consider serious mitigating factors related to the medical profile and improperly considering events occurring after the initiation of the separation proceedings. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends obtaining employment as a nighttime manager of a pizza shop. 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. The applicant contends the current discharge makes establishing a productive life difficult by preventing educational and other earned benefits as a combat veteran, and an upgrade of the discharge would allow veterans’ benefits. Eligibility for veterans’ benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant contends current discharge diminishes the opportunity to find gainful employment. The Board does not grant relief to gain employment or enhance employment opportunities. 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: The applicant held in- service diagnoses of Adjustment Disorder, Depression, and Adjustment Insomnia. Post-service diagnoses included PTSD and Other Depressive Disorder. (2) Did the condition exist or experience occur during military service? Yes. The applicant held in-service diagnoses of Adjustment Disorder, Depression, and Adjustment Insomnia. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that documentation is consistent and clear the applicant did not have an impairing behavioral health condition impacting his ability to make a conscious decision understanding the consequences at the time of the misconduct forming the basis of separation; providers did not specifically limit training until March 2011, five months after the missed movements; and even in recognizing the current service-connection, the VA places origins in 2019, not prior to 2011. The provider’s medical notes immediately following the misconduct clearly document the applicant’s premeditated decision to miss movement with an understanding of the consequences. (4) Does the condition or experience outweigh the discharge? No. Based on liberally considering all the evidence before the Board, the ADRB determined that the condition or experience did not outweigh the basis of separation. b. Response to Contention(s): (1) The applicant contends exemplary service for most of the service, including a combat tour, and no incidents of misconduct prior to the minor acts leading to the discharge. The Board determined the applicant's discharge was appropriate because the quality of the applicant's service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit to the Army and was prejudicial to good order and discipline. By going AWOL and missing movement, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (2) The applicant contends having experienced personal difficulties, the spouse requesting a divorce, impacted the ability to perform the duties and the family conflict led to the behavioral health issues. The Board considered this contention but determined that the Army has many legitimate avenues available to service members requesting assistance with family issues, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant FTR and AWOL are not an acceptable response to family issues, thus the applicant was properly and equitably discharged. (3) The applicant contends being inequitably discharged because of procedural errors constituted injustices based on failing to consider serious mitigating factors related to the medical profile and improperly considering events occurring after the initiation of the separation proceedings. The Board considered this contention and determined the applicant did not provide supporting documentation to provide merit to the claim. Ultimately, the Board decided that the assertion alone did not outweigh the basis of separation due to the severity of the offenses. In this case, the Board determined the discharge was proper and equitable. (4) The applicant contends obtaining employment as a nighttime manager of a pizza shop. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, no law or regulation provides an unfavorable discharge that must be upgraded based solely on the passage of time or good conduct in civilian life after leaving the service. The Board may consider the outstanding post-service conduct and the applicant’s performance and conduct during the service under review during proceedings. The Board reviews each discharge to determine if post-service accomplishments help demonstrate that previous in-service misconduct was an aberration and not indicative of the member’s overall character. In this case, the Board decided the discharge was proper and equitable. (5) The applicant contends the current discharge makes establishing a productive life difficult by preventing educational and other earned benefits as a combat veteran. The Board determined that eligibility for Veteran's benefits, to include educational benefits under the Post- 9/11 or Montgomery GI Bill, healthcare, or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. (6) The applicant contends current discharge diminishes the opportunity to find gainful employment. The Board does not grant relief to gain or enhance employment opportunities. c. The Board determined the discharge is, at this time, proper and equitable, considering the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. 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 not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant’s BH diagnoses of Adjustment Disorder, Depression, and Adjustment Insomnia as well as post- service diagnoses included PTSD and Other Depressive Disorder did not excuse or mitigate the offenses of AWOL and FTR. Documentation is consistent and clear the applicant did not have an impairing behavioral health condition impacting his ability to make a conscious decision understanding the consequences of missing movement and AWOL. By going AWOL and missing movement, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. (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 / Separation Order: No b. Change Characterization to: No Change 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 AR20210002220 1