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: The current characterization of service for the period under review is under other than honorable. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant served for almost 20 years between the Regular Army and Army National Guard. Prior to developing mental health issues, exacerbated by personal problems, applicant's record reflects honorable service. The medical and personal problems resulted in a decision to go AWOL, which was not a choice to avoid duty, but rather applicant was suffering from anxiety and depression. At the time, applicant's mother and stepson had critical medical conditions, applicant's wife was seeking a separation, and applicant was separated from family support. While preparing for deployment, the applicant was diagnosed with significant hearing loss and was told "you may not deploy", which caused applicant further stress. The sum of the situations caused applicant to turn to substances and alcohol to cope. After an authorized leave, applicant chose not to return to applicant's unit and was deemed AWOL. Applicant elected an U0TH in lieu of court-martial. In light of applicant's mental health issues, the applicant's discharge is inequitable because applicant's mental health conditions at the time were major contributing factors in the misconduct. While absent, the applicant realized applicant had substance abuse problems and was in VA treatment for alcohol and substance abuse, depression, and anxiety. During this time, the VA service-connected applicant's mental health conditions. Mental health professionals also found applicant suffered from PTSD symptoms due to responding to an accident which killed several of applicant's friends. The severity of applicant's conditions mitigates the misconduct, evidenced by VA treatment and service-connection while AWOL. In addition, applicant's discharge is inequitable because of applicant's service record. Applicant served honorably for almost 20 years and was continually rated above applicant's peers. During applicant's fourth period of service, the weight of applicant's mental health conditions and personal stressors resulted in a lapse of judgment and applicant remained AWOL. This decision should not outweigh applicant's other 19 years of service. Applicant's commendable service outweighs the single instance. Had applicant not suffered from these serious mental health conditions, which were even service-connected at the time of discharge, applicant would have completed applicant's fourth enlistment honorably. In light of applicant's service record and the mitigation of applicant's mental health conditions, applicant's discharge was inequitable and the discharge should be upgraded. In a records review conducted on 22 February 2022, and by a 3-2 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: 5 December 2008 c. Separation Facts: Date Charges Preferred (DD Form 458, Charge Sheet): On 22 September 2008, the applicant was charged with: Violating Article 86, UCMJ, for being AWOL from on or about 2 February 2006 to on or about 15 September 2008. (1) Legal Consultation Date: 22 September 2008 (2) 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. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Separation Decision Date / Characterization: 3 November 2008 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 6 November 2005 / 545 days (OAD) b. Age at Enlistment / Education / GT Score: 40 / HS Graduate / 112 c. Highest Grade Achieved / MOS / Total Service: E-5 / 92Y10, Unit Supply Specialist / 20 years, 29 days d. Prior Service / Characterizations: ARNG, 10 May 1984 - 9 May 1990 / HD IADT, 13 August 1984 - 8 December 1984 / HD (Concurrent Service) AGR, 14 April 1986 - 1 October 1988 / HD (Concurrent Service) (Break in Service) ARNG, 24 February 1991 - 1 November 1992 / HD USARCG, 2 November 1992 - 19 February 1993 / NA ARNG, 20 February 1993 - 12 November 1998 / HD USARCG, 13 November 1998 - 2 June 1999 / NA ARNG, 3 June 1999 - 21 August 2001 / GD USARCG, 22 August 2001 - 14 November 2004 / NA AD, 15 November 2004 - 12 May 2005 / NA USARCG,13 May - 5 November 2005 / NA e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, AAM, NCOPDR, ASR, ARCAM, AFRM, NJGCR-6, NJDSSR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. Three Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective 22 February 2006. From "AWOL" to "Dropped From Rolls (DFR)," effective 23 March 2006; and, From "Dropped From Rolls (DFR)," to "Present for Duty (PDY)," effective 18 September 2008. i. Lost Time / Mode of Return: 2 years, 2 months, 2 days (AWOL, 22 February 2006 - 14 September 2008 / Apprehended by Civil Authorities j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a Mental Health Primary Consult, dated 11 February 2010, provides a history of the applicant's mental health treatment for depression. The applicant provided a Mental Health Primary Care note, dated 31 July 2015, provides a history of the applicant's depressive symptoms. The applicant provided a C and P Examination Note diagnosis, dated 27 July 2016, reflecting the applicant has a Major Depressive disorder, recurrent, moderate and unspecified anxiety disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 dated 29 November 2018; Agreement to engage an attorney; Attorney Brief and listed exhibits. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has worked for the Post Office and the Naval Weapons Station. Applicant went back to Outpatient Rehab with the VA Hospital in East Orange, NJ for treatment. Applicant also obtained a new conversion, attended Eastern Bible College, and graduated from Virginia Union University and earned a Masters of Divinity. 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: 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 record 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 suffering from anxiety and depression. The applicant's AMHRR contains no documentation of depression or anxiety diagnosis. The applicant provided evidence to support the contention the discharge resulted from a medical condition. The C and P Examination Note diagnosis dated 27 July 2016, reflect a Major Depressive disorder, recurrent, moderate and unspecified anxiety disorder. The applicant AMHRR is void mental status evaluation. The applicant contends family issues 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 the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends good service. The Board considered the service accomplishments and the quality of service. The applicant contends having obtained employment; went to outpatient rehab and has a Master's degree. 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 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 DoD and VA medical records, and applicant submissions, and found the applicant was diagnosed with Major Depression, Generalized Anxiety Disorder, Cocaine Abuse, Major Depressive Disorder, and Alcohol Dependence, which, in the opinion of the Board's Medical Advisor could potentially mitigate AWOL charges which led to separation from the Army. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant had Major Depressive Disorder during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor arrived at this finding after reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, and opined that although the applicant has a service connected BH diagnosis of Major Depression, the applicant's lengthy AWOL period of time, about two and a half years, is not consistent with the sequela of symptoms associated with Major Depressive Disorder, and therefore applicant's AWOL is only partially mitigated by applicant's BH condition. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that any of the applicant's medical conditions outweighed the basis for applicant's separation because of the extended period of AWOL. b. Response to Contention(s): (1) The applicant contends suffering from anxiety and depression. The Board considered this contention during proceedings, but concluded applicant's BH conditions did not outweigh the applicant's AWOL bases for separation. (2) The applicant contends family issues affected behavior and ultimately caused the discharge. The Board considered this contention during proceedings, but the Board majority voted this factor did not outweigh the applicant's partially mitigated bases for separation. (3) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board considered this contention, but the Board majority voted that the seriousness of the misconduct that involved applicant's conscious and deliberate decisions that kept applicant AWOL for about two and a half years, supported the conclusion that the discharge was both proper and equitable. (4) The applicant contends good service. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings. However, the Board 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 AWOL charges, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (5) The applicant contends having obtained employment; went to outpatient rehab and has a Master's degree. 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. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. 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 majority determined that the applicant's post-service accomplishments did not overcome the applicant's AWOL for about two and a half years, and therefore concluded the discharge was both proper and equitable. c. The Board determined that 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 majority voted not to change the applicant's characterization of service despite applying liberal consideration of all the evidence before the Board, because the applicant's Major Depression, Generalized Anxiety Disorder, Cocaine Abuse, Major Depressive Disorder, and Alcohol Dependence did not outweigh the applicant's partially medically mitigated extended period of AWOL, nor did the applicant's family situation and post-service accomplishments overcome the Board's conclusion that the characterization is proper and equitable. 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 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 AR20210003171 1