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 uncharacterized. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant was diagnosed with an adjustment disorder with anxiety and depressed mood by an Army psychiatrist in advanced individual training. The psychiatrist recommended the applicant be discharged. Since the applicant’s service and discharge, the applicant has become disabled. The applicant receives social security disability and is currently applying for Department of Veterans Affairs (VA) disability. The applicant’s mental condition has deteriorated since the end of the applicant’s military career. The applicant believes the absence without leave was because of the applicant’s mental state at the time. The time for processing the discharge aggravated the applicant’s anxiety and the applicant believed there was no other choice. Since the first diagnosis, the applicant’s anxiety and depression have become worse and the applicant has been hospitalized for major depression and suicidal threats. The applicant is trying to take care of the family the best the applicant can, but to do so, the applicant requests the discharge to be upgraded to utilize a few extra benefits. Social security disability is not a livable wage. The applicant had every intention of serving the country when the applicant enlisted, but because of an unforeseen mental illness, the applicant was unable to fulfill those intentions. b. Board Type and Decision: In a records review conducted on 16 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 / Uncharacterized b. Date of Discharge: 25 February 2008 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 29 November 2007, the applicant was charged with: The Charge, Violating Article 86, UCMJ, The Specification: Being AWOL from 15 October 2007 to 28 November 2007. (2) Legal Consultation Date: 30 November 2007 (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: Uncharacterized (5) Separation Decision Date / Characterization: 11 February 2008 / Uncharacterized 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 May 2007 / 4 years b. Age at Enlistment / Education / GT Score: 34 / GED / NIF c. Highest Grade Achieved / MOS / Total Service: E-1 / None / 7 months, 28 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: None g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The Charge Sheet as described in the previous paragraph 3c. Five Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY)” to “Absent Without Leave (AWOL),” effective date 22 September 2007; From “AWOL” to “PDY,” effective date 23 September 2007; From “PDY,” to “AWOL,” effective date 15 October 2007; From “AWOL” to “Dropped From Rolls (DFR),” effective date 17 October 2007; and From “DFR,” to “PDY/Returned to Military Control,” effective date 28 November 2007. Report of Return of Absentee, dated 28 November 2007, reflects the applicant went AWOL on 15 October 2007 and surrendered to military authorities on 28 November 2007. GIRightslawyer.com letter, dated 28 November 2007, reflects the civilian counsel was representing the applicant pro bono because of the applicant’s financial restraints. Counsel indicated the applicant’s spouse was taking care of a 15 month old baby and was 7 months pregnant. The spouse and the baby were staying with the civilian counsel’s friends until the applicant was discharged and found work because they had no place to live. Memorandum, subject: AWOL / Interview Report Chapter 10 / Chapter 14, dated 29 November 2007, reflects the applicant went AWOL because of family and psychological problems. The applicant was seen by the Chaplain and a psychologist before going AWOL. The applicant indicated the spouse moved the family to San Antonio, TX, while the applicant was in training. The applicant went to move the spouse in the home over the weekend and saw the conditions of the home and the neighborhood. The applicant realized the location would not work. i. Lost Time / Mode of Return: 45 days: AWOL, 15 October 2007 – 28 November 2007 / Surrendered to Military Authorities AWOL for 1 day, 22 to 23 September 2007. 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 214; DD Form 293; Document, dated 2 October 2007 (illegible); Social Security Administration letter; Report of Medical History; Report of Medical Examination; HIV Antibody Testing Acknowledgment Form. 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 3-9 states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status. (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. (7) Paragraph 10-8c, stipulates when characterization of service under other than honorable conditions is not warranted for a Soldier in entry-level status, service will be uncharacterized. (8) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army’s best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. (9) Glossary defines entry-level status for RA Soldiers is the first 180 days of continuous AD or the first 180 days of continuous AD following a break of more than 92 days of active military service. 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 waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes. RE-4 applies to a person separated from last period of service with a nonwaiverable 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 uncharacterized 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 an uncharacterized 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 being diagnosed with anxiety and depressed mood and the mental health issues affected behavior which led to the discharge. The applicant’s AMHRR contains no documentation of a mental health diagnosis. The applicant provided a memorandum to support the application, but the document is illegible. The AMHRR is void of a mental status evaluation. The applicant contends an upgrade of the discharge would allow veterans benefits. Eligibility for veteran’s 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. 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 the following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: AHLTA contains an in-service BH diagnosis of Adjustment Disorder. JLV does not contain any additional post-service BH diagnoses. The applicant is not service connected. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found AHLTA contains an in-service BH diagnosis of Adjustment Disorder. JLV does not contain any additional post-service BH diagnoses. The applicant is not service connected. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that although the applicant has a BH diagnosis of Adjustment Disorder it is not a mitigating factor for his misconduct. AWOL is not part of the sequela of symptoms associated with Adjustment Disorder. (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. AWOL is not part of the sequela of symptoms associated with Adjustment Disorder. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The SPD codes identify reasons for, and types of, separation from active duty, and administratively linked to the reason for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. In this case, the Board determined the discharge was proper and equitable, and the SPD code and narrative reason are consistent with the procedural and substantive requirements of the regulation. (2) The applicant contends anxiety and depression affected behavior which led to the discharge. The Board reviewed the applicant's DOD and VA health records, and determined the applicant has an in-service BH diagnosis of Adjustment Disorder and does not contain any additional BH diagnoses. In this case, the Board determined the discharge was proper and equitable. (3) The applicant contends an upgrade of the discharge would allow veterans benefits. 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. c. The Board determined the discharge is, at this time, proper and equitable, in light of 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 did not excuse or mitigate the offense of AWOL. The applicant’s Uncharacterized Dischargre while in Entry Level Status, is proper and equitable. AR 635-200 paragraph 9, states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status, except when— DCS, G – 1, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. 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 a. 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 AR20210002617 1