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: 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, missing a couple of formations because of staying up late arguing with the daughter's mother, which took a toll on the willingness to be all the applicant could be. Prior to going absent without leave, the applicant asked the commander and the executive officer for advice concerning a picture of the daughter with a boot print on the face. The applicant was informed the step-father was abusing the daughter. The applicant was told by either the commander or executive officer to wait a few days for an answer. The applicant did not receive any response and decided to see the commander. The commander indicated not knowing what to tell the applicant and did not want to recycle the applicant to another class. The officer advised the applicant to take emergency leave to handle the situation. The applicant was fed up with the response and purchased a Greyhound ticket and went home to take the daughter back. The applicant fought in court until receiving joint custody and then returned to Fort Eustis, VA, with court papers and the picture of the daughter's face. The commander returned the applicant to the primary military occupational specialty and sent the applicant back to Fort Campbell, KY. The commander, at Fort Campbell, decided to kick the applicant out of the service before the applicant arrived at Fort Campbell. The applicant is incarcerated by the same daughter's mother after presenting a situation, which cost the applicant the daughter, the military career, and freedom. The applicant used to take pride in defending others. In a records review conducted on 5 May 2022, and by a 4 - 1 vote, the Board determined that the characterization of service was inequitable based on the applicant's severe family matters and warranted a partial upgrade. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service 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: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 10 January 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 7 December 2010 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was absent without leave from 29 July 2009 to 10 May 2010 and 8 July to 2 September 2010. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: On 8 December 2010, the applicant waived the right to legal counsel. The record contains an Election of Rights, dated 2 November 2010, which reflects the applicant consulted with counsel in regards to separation under AR 635-200, paragraph 14-12c, and waived the right to an administrative separation board. (5) Administrative Separation Board: On 8 December 2010, the applicant unconditionally waived consideration of the case before the administrative separation board. (6) Separation Decision Date / Characterization: 30 December 2010 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 April 2008 / 3 years b. Age at Enlistment / Education / GT Score: 21 / GED / 99 c. Highest Grade Achieved / MOS / Total Service: E-4 / 14J10, Air Defense C4I Tactical Operations Center Enhanced Operator - Maintainer / 2 years, 11 months, 29 days d. Prior Service / Characterizations: RA, 10 January 2007 - 21 April 2008 / HD e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: AAM, NDSM, GWOTSM, KDSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Eight Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective date 11 June 2009; From "Absent Without Leave" to "Present for Duty," effective date 7 July 2009; From "Present for Duty," to "Absent Without Leave," effective date 29 July 2009; From "Dropped From Rolls (DFR)," to "Present for Duty," effective date 10 May 2010; From "Present for Duty," to "Absent Without Leave," effective date 8 July 2010; From "Absent Without Leave" to "Dropped From Rolls," effective date 7 August 2010; From "Dropped From Rolls," to "Confined by Civilian Authorities (CCA)," effective date 2 September 2010; and, From "Confined by Civilian Authorities," to "Present for Duty," effective date 3 September 2010. Commonwealth of Kentucky Court Agreed Order, reflects the applicant and Ms. A.B. agreed to joint custody of minor child and at no time would the minor child be left alone with J.W. Request and Authority for Leave, dated 10 May 2010, reflects the applicant requested leave from 10 to 29 July 2009 (20 days) and the leave was approved by the commanding officer. Sworn Statement, dated 11 May 2010, reflects the applicant indicated the reason for the AWOL was due to a family emergency involving the daughter and was already on leave, but stayed to handle the situation. The applicant went to several court events in an attempt to gain custody of the child. Charge Sheet, dated 29 September 2010, reflects the applicant was charged with violation of the UCMJ, Article 86, for: Without authority absent from the unit from 11 June to 7 July 2009; Without authority absent from the unit from 29 July 2009 to 10 May 2010; and, Without authority absent from the unit from 8 July to 2 September 2010. Return of Return of Absentee, dated 1 September 2009, reflects the applicant was AWOL on 29 July 2009 and was apprehended by civil authorities and returned to military control on 1 September 2010. Note. Personnel Action form reflects the applicant returned on 10 May 2010, from the 29 July 2009 AWOL and returned on 2 September 2010 from the 8 July 2010 AWOL. Offer to Plead Guilty, dated 14 October 2010, reflects charges were preferred against the applicant and the applicant offered to plead guilty to The Charge and Specification 2 and 3 and waive the right to an administrative separation board, in exchange for the Convening Authority agreeing to refer the case to a summary court-martial, dismiss Specification 1, and disapprove any confinement adjudged in excess of 15 days. The Convening Authority accepted the agreement. Record of Trial by Summary Court Martial, dated 5 November 2010, reflects the applicant was found guilty of, The Charge, Violating Article 86, UCMJ: Specification 2: AWOL from 29 July 2009 to 10 May 2010. Plea: Guilty Specification 3: AWOL from 8 July 2010 to 2 December 2010. Plea: Guilty The sentence adjudged was confinement for 30 days. On 3 November 2010, only so much of the sentence as provides for confinement for 15 days, per agreement, was approved; deferred until 10 November 2010. Report of Mental Status Evaluation, dated 3 November 2010, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant had the mental capacity to understand and participate in the proceedings. The mental status evaluation did not indicate a diagnosis. Letter from Ms. M.K., undated, reflects the author was the applicant's spouse. The letter indicated the spouse was abandoned by the applicant in June 2009 and the applicant had not provided any spousal support from the BAH since June 2009, although agreed to do so. The spouse requested assistance with the matter. Letter from applicant, undated, reflects the applicant provided a statement to the separation authority, in support of administrative separation. The applicant stated, at the age of 6 years old, was diagnosed with Attention Deficit Disorder, Attention Deficit Hyperactive Disorder, Anxiety, Bipolar disorder (manic depressive). At the time of enlistment, the applicant's doctor agreed to provide a statement regarding the applicant's condition to allow enlistment. The applicant's recruiter indicated MEPs did not accept the statement and the recruiter found another way to allow the applicant to enlist. The applicant further provided information regarding life prior to enlistment; active duty service, and circumstances surrounding AWOLs. i. Lost Time / Mode of Return: 1 year, 4 months: AWOL, 11 June 2009 - 6 July 2009 / Surrendered AWOL, 29 July 2009 - 9 May 2010 / Surrendered AWOL, 8 July 2010 - 2 September 2010 / Apprehended by Civil Authorities j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical Examination, dated 15 November 2010, the examining medical physician noted in the summary of defects and diagnosis section: Current history of depression, with history of suicide attempt and continue current treatment, monitor with Behavioral Health. Report of Medical History, dated 15 November 2010, the examining medical physician noted in the comments section: Anxiety, insomnia, depression, suicide, counseling treatment; onset age 13. Evaluated at mental health facility in Kentucky, at age 5 until age 18. The applicant had a history of Bipolar manic, depression, and insomnia, which the applicant denies a waiver and was not disclosed to enter military. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; electronic mail message. 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) 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 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. (6) 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. (7) Paragraph 14-12c prescribes a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. (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. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). 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-3 applies to a person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. 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 family issues affected behavior, which ultimately led to the discharge. The AMHRR reflects the applicant may have reported the family issues to the chain of command prior to the misconduct. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The record reflects the applicant reported mental health conditions, which were not disclosed during enlistment. The applicant underwent a mental status evaluation on 3 November 2010, which reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant had the mental capacity to understand and participate in the proceedings. The MSE does not indicate any diagnosis. The MSE was considered by the separation authority. ARBA sent a letter to the applicant at the address in the application on 2 August 2021, requesting documentation to support the behavioral health issues. The applicant responded requesting more information, but did not submit any documents to support the contention. 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. Applicant was diagnosed in service with Adjustment Disorder and Impulse Control Disorder that could mitigate the basis for separation. (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 Adjustment Disorder and Impulse Control Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor, even after applying liberal consideration, determined that the medical conditions do not mitigate the basis of separation. The Board's Medical Advisor opined that applicant was diagnosed in service with Adjustment Disorder and Impulse Control Disorder, neither of which are mitigating conditions in this case. Both conditions were diagnosed post- AWOL and there is no evidence that they were associated with applicant's AWOL. Instead, it is clearly documented in the medical record and asserted by applicant that the AWOL was due to family issues, and not the applicant's BH conditions. (4) Does the condition or experience outweigh the discharge? No. The Board, after applying liberal consideration, agreed with the Board's Medical advisor, and voted that the applicant's BH conditions do not outweigh the medically unmitigated AWOLs that were the basis for applicant's separation. b. Response to Contention(s): The applicant contends family issues affected behavior, which ultimately led to the discharge. The Board determined that the Army has many legitimate avenues available to service members requesting assistance with disputes or family issues, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued, however, the Board voted to partially upgrade the applicant's discharge characterization because of the inequity created by the applicant's family issues. c. The Board determined that the characterization of service was inequitable based on the applicant's severe family matters. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General (Under Honorable Conditions). d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to General (Under Honorable Conditions) because it was clearly documented in the medical record and asserted by the applicant that the AWOLs were due to severe family issues, and in this specific case warrant a partial upgrade. Thus the prior characterization is no longer appropriate. (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: 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 AR20210002971 1