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 under other than honorable conditions. The applicant, through counsel, requests an upgrade of the characterization of service to honorable. The applicant seeks relief contending, in effect, an upgrade would allow the applicant better and more stable employment to provide for the applicant's daughter's personal and medical needs as the applicant has sole custody. The applicant returned from Iraq and found the spouse was having an affair with multiple Soldiers. The applicant was evicted from the home and had to live in the applicant's car. The applicant had to endure harassment from fellow Soldiers, and spending three days in the psychiatric ward qualifies for equitable relief. The applicant was depressed, suicidal, homicidal, and extremely stressed, which affected behavior and ultimately caused the discharge. The applicant had problems finding work for a period but has built a relationship within the community and church programs. The applicant was pursuing a college education and enrolled online at Brigham Young University through the "Pathway Program" by completing the first year of online classes. The applicant volunteers at Brighter Day Farm to be a special-needs counselor. The current discharge has hurt the applicant's ability to get a job which the applicant would otherwise qualify. b. Board Type and Decision: In a records review conducted on 28 July 2022, and by a 5-0 vote, the Board voted to upgrade the discharge to General (Under Honorable Conditions). 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: 22 June 2005 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 2 June 2005, the applicant was charged with: Charge I: Violating Article 86, UCMJ, Specification 1: On 8 March 2004, for being AWOL and remaining absent until 5 April 2004. Specification 2: On 22 April 2004, for being AWOL and remaining absent until 30 May 2005. (2) Legal Consultation Date: 3 June 2005 (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: 14 July 2005 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 February 2002 / 3 years b. Age at Enlistment / Education / GT Score: 19 / GED / 111 c. Highest Grade Achieved / MOS / Total Service: E-3 / 13M10, Multiple Launch Rocket System Crewmember / 2 years, 3 months, 21 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: NDSM, ASR, GWOTSM, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 13 April 2004, for being AWOL (between 8 March and 3 April 2004). The punishment consisted of a reduction to E-1; forfeiture of $997 pay per month for two months (suspended); and extra duty for 45 days. 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 8 March 2004; From "AWOL" to "PDY," effective date 3 April 2004; From "AWOL" to "Dropped From Rolls (DFR)," effective date 23 April 2004; and, From "DFR," to "PDY," effective date 30 May 2005. Charge sheet as described in previous paragraph 3c. i. Lost Time / Mode of Return: 1 year, 2 months, 3 days: (AWOL, 8 March 2004 - 4 April 2004; 22 April 2004 - 29 May 2005) / Surrendered to Military Authorities j. Applicant Provided or AMHRR listed PTSD / TBI / Other Behavioral Health Condition(s): Applicant-provided affidavit; applicant-provided letters from civilian provider. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Legal Brief with all listed enclosures A through N; Enlisted Record Brief; three third-party letters; case separation packet; medical records; copies of military personnel records. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is enrolled online at Brigham Young University through the "Pathway Program" and completed the first year of online classes. The applicant volunteers at Brighter Day Farm to be a special-needs counselor. 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. (8) 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. 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: 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 evidence of Army Military Human Resource Record (AMHRR) confirms the applicant was charged with the commission of an offense, AWOL, 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's contends suffering from undiagnosed depression, suicidal and homicidal ideation, and was extremely stressed, which affected behavior and ultimately caused the discharge. The applicant contends spending three days in psychiatric ward qualify the applicant for equitable relief. The applicant's AMHRR contains no documentation of any mental health diagnosis. The applicant provided medical documents indicating a diagnosis of post-traumatic stress disorder (PTSD). The AMHRR is void of a mental status evaluation. The applicant contends spouse infidelity affected behavior and ultimately caused the discharge. 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 applicant contends having to endure harassment from fellow Soldiers, including making the applicant wear a vest that read "I'm on suicide watch." There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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. The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. The applicant contends successfully completing the first year of online classes and volunteering in the community. 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 and 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: Asserted Depression and civilian provider assessed PTSD. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant's asserted Depression and post-service civilian provider PTSD diagnosis existed during service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined that applicant's PTSD partially mitigates the applicant's AWOL offense based on the applicant's post-service civilian provider PTSD assertion given the nexus between avoidance and PTSD. The civilian provider's notes, however, do not contain an assessment; rather a statement that the applicant "appears to meet the criteria of PTSD". This lack of detail in the determination creates ambiguity that does not rise to the level of full mitigation for the applicant's AWOL misconduct. Further, the Board Medical Advisor opined that the applicant's asserted Depression does not mitigate the applicant's AWOL as there is no medical documentation in the applicant's official record or provided by the applicant to support the applicant's assertion of depression existed during military service. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, including the Board Medical opine, the Board determined that that the applicant's civilian-provider assessed PTSD does not outweigh the applicant's partially medically mitigated basis for applicant's separation - two offenses of AWOL - based on the incomplete civilian provider PTSD assessment. However, the Board determined that partial relief is warranted as noted in paragraph 9c and 9d, below. b. Response to Contention(s): (1) The applicant contends suffering from undiagnosed depression, suicidal and homicidal ideation, and was extremely stressed, which affected behavior and ultimately caused the discharge. The Board determined that that the applicant's civilian-provider assessed PTSD does not outweigh the applicant's partially medically mitigated basis for applicant's separation - two offenses of AWOL - based on the incomplete civilian provider PTSD assessment. However, the Board determined that partial relief is warranted as noted in paragraph 9c and 9d, below. (2) The applicant contends spending three days in the psychiatric ward qualify the applicant for equitable relief. The Board determined that that the applicant's civilian-provider assessed PTSD does not outweigh the applicant's partially medically mitigated basis for applicant's separation - two offenses of AWOL based on the incomplete civilian provider PTSD assessment. However, the Board determined that partial relief is warranted as noted in paragraph 9c and 9d, below. (3) The applicant contends spouse infidelity affected behavior and ultimately caused the discharge. The Board considered this contention, but determined that the Army has many legitimate avenues available to service members requesting assistance with family issues, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant being AWOL (twice) is not an acceptable response to dealing with family issues, thus the applicant was properly and equitably discharged. (4) The applicant contends enduring harassment from fellow Soldiers. The Board considered this contention and determined that there is insufficient evidence in the applicant's official record or provided by the applicant to warrant a discharge upgrade specific to this contention. (5) The applicant contends an upgrade of the discharge will allow veterans benefits and the applicant to obtain better employment. The Board determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. (6) The applicant contends successfully completing the first year of online classes and volunteering in the community. The Board considered this contention and determined that the post-service accomplishments do not warrant an upgrade. However, the Board determined that partial relief is warranted as noted in paragraph 9c and 9d, below. c. The Board determined that the discharge is inequitable due to partial medical mitigation of the misconduct basis of separation - two offenses of AWOL - and upgraded the characterization to a General (Under Honorable Conditions) discharge. 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 to change the applicant's characterization of service to General (Under Honorable Conditions). However, the Board decided that full relief is not warranted because the applicant's civilian provider letter was ambiguous about whether the applicant was diagnosed with PTSD as the civilian provider failed to include the applicant's PTSD assessment conducted using the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). Without a qualified provider concluding that the applicant experienced PTSD symptoms or meets the criteria for a PTSD diagnosis that resulted from the applicant's military service, the Board determined that there is insufficient evidence in the applicant's record to fully mitigate or excuse the applicant's two AWOL offenses. (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: Yes b. Change Characterization to: General (Under Honorable Conditions) 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 AR20210002719 1