1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: 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, through counsel, requests an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant's honorable service should not be characterized by an unauthorized absence. The Army knew the applicant was suffering from debilitating pain. The applicant was prodded for over a year and the doctors could not diagnose or cure the applicant's chest pains. The doctors referred the applicant to Mental Health. Dr. B. determined the applicant's prolonged suffering was taking a mental toll on the applicant and recommended the applicant be separated from the Army for a diagnosed mental health disorder. The applicant's command agreed and recommended the applicant be separated with an honorable discharge. This was the equitable and fair result formulated by a chain of command who knew both the applicant as a Soldier and the unique circumstances of the applicant's case. The Personnel Control Facility leadership separated the applicant but did not know or understand the applicant's unique circumstances, which was and remains inequitable. The applicant's discharge was improper because the separation package did not include the reports of the medical and mental status evaluations, which were done in this case. Army Regulation 635-200 requires a Chapter 10 discharge package must include the report of mental status evaluation if one was conducted. Likewise, the package must also contain a statement of any reasonable ground for belief the Soldier is, or was at the time of misconduct, mentally defective, deranged, or abnormal. First Sergeant U. noted the applicant had seen a psychologist before going AWOL. This should have been enough to prompt the First Sergeant to check with the mental health clinic to determine whether the applicant had any relevant medical records. If First Sergeant U. had checked, the First Sergeant would have found the applicant had been subject to a complete mental examination in accordance with AR 40-501 on 29 November 2005. Dr. B. had observed the applicant was unable to make reasoned decisions just a few months before the applicant went AWOL. The applicant was suffering from multiple medical conditions, including adjustment disorder with anxious mood; a cataract in the right eye; astigmatism; esophageal reflux; nicotine dependence; mood disorder due to general medical condition; atypical chest pain; phase of life or life circumstance problems; and panic disorder without agoraphobia. This information should have been included in the separation package for the separation authority's consideration. Because it was not, the applicant's discharge was not properly affected. The applicant served as a full-time law enforcement officer with the New Orleans Police Department and is currently employed as a Sales Manager at Four Seasons Heating and Air Conditioning. The applicant earned an Associate's degree with honors. The applicant is happily married with two children, and the applicant is dedicated to caring for the oldest child who has special needs. The applicant requests an upgrade to honorable and a change in narrative reason to reflect separation under AR 635-200, Chapter 5, paragraph 5-17. Counsel further details the contentions in an allied memorandum (legal brief) provided with the application. b. Board Type and Decision: In a records review conducted on 3 November 2022, and by a 5-0 vote, the Board determined the discharge is inequitable based on the circumstances surrounding the discharge (OBHI and PTSD diagnoses). 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 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN, and the reentry code to RE-3. 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: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 12 January 2007 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 4 October 2006, the applicant was charged with: Charge: Violating Article 86, UCMJ, for being AWOL from 30 March 2006 to 2 October 2006. (2) Legal Consultation Date: 5 October 2006 (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 8 December 2006 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 December 2003 / 3 years / The Army Military Human Resource Record (AMHRR) is void of any enlistment contract retaining the applicant on active duty after the initial / most recent enlistment period. b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 109 c. Highest Grade Achieved / MOS / Total Service: E-4 / 13F10, Fire Support Specialist / 2 years, 6 months, 10 days / The applicant's DD Form 214 reflects the applicant was on excess leave for 99 days and the total prior inactive service as 1 year, 5 months, 15 days, which appears to be attributed to the time in the Delayed Entry Program. d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The Charge Sheet as described in previous paragraph 3c. The applicant provided memorandum, subject: Separation under AR 635-200, Chapter 5, dated 8 February 2006, reflects the Commander, Headquarters and Headquarters Battery, III Corps Artillery, Fort Sill, OK, initiated separation under the provisions AR 635-200, Chapter 5, Section III, Paragraph 5-17 for other designated physical or mental condition because the applicant was diagnosed with adjustment disorder with anxious disorder. The commander recommended an honorable discharge. One Personnel Action form, reflects the applicant's duty status changed from "Dropped From Rolls (DFR)," to "PDY / Returned to Military Control," effective date 2 October 2006. Personnel Control Facility (PCF) Memorandum, subject: AWOL/Interview Report Chapter 10/Chapter 14, dated 4 October 2006, reflects the applicant indicated the reason for going AWOL was because of family / marital problems. The applicant was seen by a psychologist before going AWOL. The applicant did not request to remain on active duty. The memorandum, subject: Request for Discharge in Lieu of Trial by Court-Martial, dated 5 October 2006, reflected the applicant did not desire a physical evaluation prior to separation. Orders 289-28, dated 16 October 2006, reflects the applicant was assigned to the PCF, effective 2 October 2006. i. Lost Time / Mode of Return: 6 months, 4 days (AWOL, 30 March 2006 - 2 October 2006) / Surrendered j. Diagnosed PTSD / TBI / Behavioral Health: Chronological Record of Medical Care, dated from 9 September 2005 to 31 January 2006, reflects the applicant was diagnosed with adjustment disorder with anxious mood; adjustment disorder with depressed mood; mood disorder because of general medical condition; adjustment disorder with anxiety; atypical chest pain; anxiety; phase of life or life circumstance problem; panic disorder without agoraphobia. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Memorandum of Law in Support of Applicant's Request for Discharge Review with all listed enclosures 1 through 12. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends serving with the New Orleans Police Department as a law enforcement officer and is currently employed at the Four Seasons Heating and Air as a Sales Manager. The applicant earned an Associate's degree with honors. The applicant is happily married with two children and is dedicated to caring for the oldest child who is a special needs child. 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 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. (5) Paragraph 10-8a stipulates a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. (See chap 3, sec II.) (6) Paragraph 10b stipulates Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper. 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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, In Lieu of Trial by Court-Martial. 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes. RE-4 applies to a person separated from last period of service with a nonwaivable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 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 evidence of Army Military Human Resource Record (AMHRR) confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, in consultation with legal counsel, voluntarily requested, in writing, a discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and indicated an understanding an under other than honorable conditions discharge could be received, and the discharge would have a significant effect on eligibility for veterans' benefits. The general (under honorable conditions) discharge received by the applicant was appropriate under the regulatory guidance. The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 10, AR 635-200, with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," and the separation code is "KFS." Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214, and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2- 3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends family, medical issues, and mental health issues affected behavior, which ultimately led to the discharge. The applicant provided in-service medical documents which reflect the applicant was diagnosed with adjustment disorder with anxious mood; adjustment disorder with depressed mood; mood disorder because of general medical condition; adjustment disorder with anxiety; atypical chest pain; anxiety; phase of life or life circumstance problem; panic disorder without agoraphobia. The AMHRR is void of a mental status evaluation. The applicant contends the event which led to the discharge from the Army was an isolated incident. 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 the separation is improper because the mental status evaluation and medical examination were not included in the separation packet. Army Regulation 635-200 provides a mental status evaluation is required when a Solder being processed for discharge under Chapter 10 requests a medical examination. The AMHRR reflects the applicant was reassigned to the PCF after the applicant returned from AWOL and, after consulting with counsel, voluntarily requested discharge in lieu of court-martial. The applicant indicated, the applicant went AWOL because of family / marital problems and was seen by a psychologist before going AWOL. The applicant did not desire a medical examination, which if granted, would have included a mental status evaluation. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service. The applicant contends serving with the New Orleans Police Department as a law enforcement officer and is currently employed at the Four Seasons Heating and Air as a Sales Manager. The applicant earned an Associate's degree with honors. The applicant is happily married with two children and is dedicated to caring for the oldest child who is a special needs child. 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 third party statements provided with the application speak highly of the applicant. They all recognize the applicant's good conduct after leaving the Army. 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: Adjustment Disorder, Anxiety, Mood Disorder Due to General Medical Condition, and Panic Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant was diagnosed in service with an Adjustment Disorder, Anxiety, Mood Disorder Due to a General Medical Condition, and Panic Disorder. Applicant is also service connected by the VA for Anxiety. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that while Anxiety is not typically a mitigating BH condition, it is the opinion of the Medical Advisor that it should be considered in this applicant's circumstance. There is some evidence in the medical record to support that applicant's service connected Anxiety contributed to applicant going AWOL. The AWOL is partially mitigated because there is also notation that applicant reported going AWOL due to family/marital problems. (4) Does the condition or experience outweigh the discharge? Yes. The Board concurred with the opinion of the Board's Medical Advisor, a voting member. As a result, the ADRB applied liberal consideration and found that the applicant's Adjustment Disorder, Anxiety, Mood Disorder Due to General Medical Condition, and Panic Disorder outweighed the AWOL basis for separation for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board determined that this contention was valid and voted to upgrade the characterization of service due to Anxiety mitigating the applicant's AWOL charges. (2) The applicant contends family, medical issues, and mental health issues affected behavior, which ultimately led to 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 Anxiety fully outweighing the applicant's AWOL basis for separation. (3) The applicant contends the event which led to the discharge from the Army was an isolated incident. 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 Anxiety fully outweighing the applicant's AWOL basis for separation. (4) The applicant contends the separation is improper because the mental status evaluation and medical examination were not included in the separation packet. 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 Anxiety fully outweighing the applicant's AWOL basis for separation. (5) The applicant contends good service. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings along with the totality of the applicant's service record. (6) The applicant contends serving with the New Orleans Police Department as a law enforcement officer and is currently employed at the Four Seasons Heating and Air as a Sales Manager. The applicant earned an Associate's degree with honors. The applicant is happily married with two children and is dedicated to caring for the oldest child who is a special needs child. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge must be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. 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. In this case, the Board considered this contention and determined that an upgrade is warranted based on the applicant's Anxiety fully outweighing the applicant's AWOL basis for separation. c. The Board determined the discharge is inequitable based on the circumstances surrounding the discharge (OBHI and PTSD diagnoses). 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 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN, and the reentry code to RE-3. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's Anxiety outweighed the applicant's misconduct of AWOL. (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. (3) The Board voted to change the RE code to RE-3. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions) / JKN d. Change RE Code to: RE-3 e. Change Authority to: AR 635-200, paragraph 14-12a 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 AR20210002397 1