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, the applicant had a special court-martial wherein the applicant was tried and found guilty of being absent without leave. The applicant was sentenced to 170 days confinement. The applicant served out the 170 days in a Naval brig in Washington, after which the applicant returned to duty to continue the applicant's service. A few months later, the applicant was discharged from the Armed Forces with the reason for separation being AWOL. The applicant recently learned about 844, Article 44 of the UCMJ which talks about double jeopardy, and the applicant believes being punished twice for the same incident which both have had a dramatic effect of the applicant's life. The applicant served the time in confinement, the judge saw fit to return to service and then the Army discharged the applicant for the same offense. This misconduct has been on the applicant's DD Form 214 for years and the applicant is hoping to have it changed. b. Board Type and Decision: In a records review conducted on 1 September 2022, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's BH diagnosis mitigating the majority of misconduct and the applicant's length and quality of service and length of time since the discharge outweighing the remaining misconduct. 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: Misconduct (AWOL) / AR 635-200, Chapter 14-12c (1) / JKD / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 26 March 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 5 March 2010 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was absent without leave from on or about 15 November 2007 until on or about 21 April 2008, and on or about 25 April 2008 to on or about 2 April 2009. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 10 March 2010 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 10 March 2010 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 25 January 2007 / 4 years b. Age at Enlistment / Education / GT Score: 22 / GED / 107 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 4 years, 8 months d. Prior Service / Characterizations: RA, 9 March 2004 - 24 January 2007 / HD e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: AAM-2, NDSM, KDSM, ASR, OSR-2 g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 8 November 2007, for failing to go at the time prescribed to the appointed place of duty on or about 22 October 2007; was derelict in the performance of duties on or about 24 October 2007; disobey a lawful order on or about 24 October 2007; disrespectful in deportment toward First Sergeant C. P. M.; wrongfully use Marijuana between on or about 7 September 2007 and on or about 11 September 2007; and, wrongfully use Marijuana between on or about 7 October 2007 and on or about 11 October 2007. The punishment consisted of a reduction to E-1; forfeiture of $650 pay per month for two months (suspended); and extra duty for 45 days; and restriction for 30 days. Three Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective 15 November 2007; From "AWOL" to "Dropped From Rolls (DFR)," effective 15 December 2007; and From "Dropped From Rolls (DFR)," to "Present for Duty (PDY)," effective 2 April 2009. SCMO Number 28, dated 3 December 2009, reflects the applicant was found guilty of Charge I, violating Article 86, UCMJ, for being absent from the unit on or about 25 April 2008 and did remain absent until on or about, 2 April 2009; and, Charge II, violating Article 134, UCMJ, for breaking restriction on or about 15 November 2007. The applicant was sentenced to 170 days confinement. Confinement Order, dated 24 June 2009, reflects the applicant was to be confined for 170 days. Inmate's Release Order, dated 6 November 2009, reflects the applicant would be released from confinement on 8 November 2009. Mental Status Evaluation, dated 4 February 2010, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible with a clear thinking process. i. Lost Time / Mode of Return: 1 years, 4 months, 18 days (AWOL, 15 November 2007 - 2 April 2009) / Returned to Military Control j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 25 January 2010, the examining medical physician noted in the comments section: Celexa- Depression. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; DA Form 4430; Department of the Army Report of Result of Trial; two DD Forms 214. 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 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(1) allows for an absentee returned to military control from a status of absent without leave or desertion to be separated for commission of a serious offense. 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 "JKD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c(1), misconduct (AWOL). 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-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. 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 record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends after serving the sentence for being AWOL, the applicant was then discharged a few months later for the same reason. The applicant believes being punished twice for the same incident. Army Regulation 635-200, Paragraph 14-12c(1) allows for an absentee returned to military control from a status of absent without leave or desertion to be separated for commission of a serious offense. The Army Military Human Resource Record (AMHRR) does not contain any indication or evidence of arbitrary or capricious actions by the command. 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 found that the applicant has the following potentially mitigating diagnoses/experiences: Major Depressive Disorder (MDD) and Adjustment 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 an Adjustment Disorder and Depression, and service connected by the VA for Major Depressive Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor opined after review of all available information, applicant was diagnosed in service with an Adjustment Disorder and Depression, and is service connected by the VA for Major Depressive Disorder. Given the nexus between Depression and avoidance, applicant's Depression likely contributed to the AWOL that led to applicant's separation, as well as the FTR and dereliction of duty from October 2007. The active duty medical record further supports this by revealing that the applicant was being treated for Depression right before going AWOL, and applicant had experienced a worsening of symptoms the month before going AWOL. Therefore, applicant's AWOL, FTR, and dereliction of duty are mitigated by applicant's Depression. Given the nexus between Depression and self-medicating with substances, applicant's marijuana use is also mitigated. Neither Depression or an Adjustment Disorder have a natural sequela with difficulty with authority, so applicant's disrespect and disobeying a lawful order are not mitigated by applicant's BH conditions. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board considered the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant's MDD and Adjustment Disorder mitigated the applicant's misconduct of disrespect and disobeying a lawful order - for the aforementioned reason(s). b. Response to Contention(s): The applicant contends after serving the sentence for being AWOL, the applicant was then discharged a few months later for the same reason. The applicant believes being punished twice for the same incident. The Board considered this contention and determined the applicant was properly and equitably discharged per Army Regulation 635-200, Paragraph 14-12c(1) allows for an absentee returned to military control from a status of absent without leave or desertion to be separated for commission of a serious offense. Ultimately the Board found insufficient evidence of any arbitrary or capricious action taken by the Command, and determined the discharge was proper and equitable. c. The Board determined the discharge is inequitable based on based on the applicant's BH diagnosis mitigating the majority of misconduct and the applicant's length and quality of service and length of time since the discharge outweighing the remaining misconduct. 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. However, the applicant may request a personal appearance hearing to address further 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 to change the applicant's characterization of service to Honorable because the applicant's BH diagnosis mitigated the majority of misconduct and the applicant's length and quality of service and the length of time since the discharge outweighed the remaining misconduct. 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. (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: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change 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 AR20210002564 1