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, the applicant was a model Soldier, until the applicant was assigned to Fort Polk. The applicant encountered many situations the applicant was not ready for. During the applicant’s time with ADA Battery, 1st Squadron, 2nd Armored Cavalry Regiment, a noncommissioned officer (NCO) made sexual advances towards the applicant’s spouse, at the time. The applicant made numerous attempts with the chain of command and attempted to file complaints with the Inspector General (IG) and nothing was done, except find ways to punish the applicant. The applicant witnessed a Soldier who had just arrived from Korea forced to complete a seven mile run because the Soldier did not hand-carry the medical records. The Soldier had a heart condition and the applicant came back to find the Soldier dead in the room. There was nothing done except to try to cover matters up. A few weeks before the unit’s rotation to the National Training Center (NTC), Fort Irwin, the applicant injured the shoulder. While at NTC, the NCO, who made sexual advances towards the applicant’s spouse, told the applicant to do pushups. The applicant had a permanent P-3 profile. The applicant asked the NCO not to make the applicant do the pushups. The NCO told the applicant to either do the pushups or the NCO would initiate an Article 15 for disobeying a direct order. The applicant performed the pushups and tore the rotator cuff. The applicant continued to receive unfair treatment. The applicant had surgery on a broken the foot and the doctor recommended 30 days of convalescent leave to stay with the family to help the applicant recover. First Sergeant C. denied the leave and told the applicant to call in every morning. The applicant was confined to the applicant’s home with no one to help the applicant. The applicant barely ate for 30 days. Again, the applicant tried to a file complaint and nothing was done. One day the applicant packed a bag and left because of the medications and the emotional stress the applicant was enduring. Eventually, the applicant was picked up in Hawaii and dropped off at the airport. The applicant returned on the applicant’s own without an escort. When the applicant returned, the applicant was under the supervision of Sergeant First Class (SFC) H. SFC H. read over the applicant’s file and asked the applicant, if SFC H. could work it out, would the applicant stay in? The applicant replied, “yes.” During this time the applicant performed the duties and assignments, but 90 days later, JAG informed the applicant, the applicant was to be processed out of the Army. Before the applicant left, SFC H. wrote the applicant a letter of recommendation. When the applicant arrived at Fort Polk, the applicant had a good record and was planning to stay for 20 years. The applicant knows it was not the right decision to leave and regrets the decision, but the applicant believed all options were exhausted. Since the applicant’s discharge, the applicant has done many good things. The applicant is very involved member of the church; the owner and operator of a construction company; and a great spouse and parent. b. Board Type and Decision: In a records review conducted on 9 August 2022, 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) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 8 July 2003 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 12 May 2003, the applicant was charged with: The Charge, Violating Article 86, UCMJ, for being AWOL from 10 February 2000 to 2 May 2003. (2) Legal Consultation Date: 14 May 2003 (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: 29 May 2003 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 September 1998 / 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: 24 / GED / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 92G10, Food Service Specialist / 8 years, 1 day d. Prior Service / Characterizations: ARNG, 20 October 1994 – 19 October 1998 / HD ADT, 18 January 1995 – 28 June 1995 / UNC (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM, AGCM, NDSM, ASR, JMUA, ARCAM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The Charge Sheet as described in the previous paragraph 3c. Four Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY)” to “Absent Without Leave (AWOL),” effective date 23 July 1999; From “Absent Without Leave” to “Present for Duty,” effective date 26 July 1999; From “Absent Without Leave” to “Dropped From Rolls (DFR),” effective date 11 March 2000; From “Deserter,” to “Present for Duty,” effective date 2 May 2003. Deserter / Absentee Wanted by the Armed Forces form, dated 16 March 2000, reflects the applicant was AWOL, effective 10 February 2000, with a date of desertion of 11 March 2000. Report of Return of Absentee form, dated 30 January 2003, reflects the applicant was apprehended by civil authorities and returned to military control on 30 January 2003. i. Lost Time / Mode of Return: AWOL for 3 year, 2 months, 27 days (1182 days), 23 to 26 July 1999 and 10 February 2000 to 2 May 2003. This period is not annotated on the DD Form 214 block 29. j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; four character references. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends being an active member of the church, owning a construction business, and being a great parent and a good citizen. 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) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) 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. (6) 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.) (7) 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 under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends depression affected behavior which led to the discharge. The applicant’s AMHRR contains no documentation of a mental health diagnosis. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention the discharge resulted from any medical condition. The AMHRR is void of a mental status evaluation. The applicant contends family issues and harassment from members of the command affected behavior which contributed to the discharge; and the applicant sought assistance from the command and the Inspector General. The applicant provided third party statements attesting to the contention regarding a hostile work environment and family issues. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends being an active member of the church, owning a construction business, and being a great parent and a good citizen. 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 in the Army and/or 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: Applicant asserts being under emotional stress, which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant states being under emotional stress during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. After applying liberal consideration, the Board’s Medical Advisor determined that the applicant’s asserted emotional stress could mitigate the applicant’s AWOL basis of separation, as avoidance is part of the sequela of symptoms associated with emotional stress. However, the Board Medical Advisor was unable to provide a medical opine on whether the applicant’s emotional stress actually mitigates the applicant’s misconduct because though the applicant asserts experiencing emotional stress, the applicant did not provide a medical diagnosis at any point during that timeframe. Without additional medical evidence, the Board Medical Advisor determined the applicant’s asserted emotional stress does not mitigate the applicant’s discharge. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration, the Board’s Medical Advisor determined that the applicant’s asserted emotional stress could mitigate the applicant’s AWOL basis of separation. However, the Board Medical Advisor was unable to provide a medical opine on whether the applicant’s asserted emotional stress actually mitigates the applicant’s AWOL as there is no evidence in the applicant’s official medical record or provided by the applicant that the applicant experienced BH symptoms or had a BH diagnosis. Based on the available evidence, the Board determined that applicant’s asserted emotional stress did not mitigate the applicant’s AWOL basis for separation. b. Response to Contention(s): (1) The applicant contends depression affected behavior which led to the discharge. The Board considered this contention and the applicant’s assertion of emotional stress, however the Board determined that there is no evidence of said diagnoses in official or medical records, and the applicant did not provide supporting documentation by a qualified medical professional to provide merit to the claim. Ultimately, the Board determined that the assertion alone did not outweigh the basis of separation due to the severity of the offenses. (2) The applicant contends family issues and harassment from members of the command affected behavior which contributed to the discharge; and the applicant sought assistance from the command and the Inspector General. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. In this case, the Board determined that the applicant being AWOL is not an acceptable response to dealing with family issues, thus the applicant was properly and equitably discharged. (3) The applicant contends good service. The Board considered the totality of the applicant’s service record, but 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 on the Army, and was prejudicial to good order and discipline. By being AWOL, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (4) The applicant contends being an active member of the church, owning a construction business, and being a great parent and a good citizen. 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. 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 determined that this assertion alone did not outweigh the basis of separation due to the severity of the offenses. The applicant was properly and equitably discharged. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. 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 not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant did not have any conditions or experiences that could excuse or mitigate the offenses of being AWOL. The Board also considered the totality of the applicant’s service record, asserted emotional stress, contended family issues, and post-service conduct, and determined there was insufficient evidence of any arbitrary or capricious action taken by the separation authority, and insufficient evidence of mitigating factors such that would warrant an upgrade of the applicant’s discharge. 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. Therefore, the applicant’s UOTHC was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to HD. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, and 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 AR20210002613 1