1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: Yes 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is uncharacterized. The applicant requests an upgrade to honorable. The applicant, through counsel, seeks relief contending, in effect, he went AWOL because of personal, health/medical and family problems. His command made an error in discretion regarding his reason for separation from the Army. In terms of the second period of AWOL which lasted for nearly one year, the applicant was under the impression he was supposed to be away from training. Although the applicant’s OMPF is scant in terms of paperwork, there is a reference in the 16 October 2009 memorandum to an injury the applicant had during basic training. The applicant had a fracture in his ankle which prevented him from participating in training. He was given a leave slip from his chain of command and told to return home to rehabilitate his ankle until he was healthy enough to complete his training. At this point, the applicant left Fort Benning, Georgia and returned to his hometown of San Antonio, Texas. He was living with his parents while his ankle healed and found employment to keep busy during this time. It was his understanding the Army would contact him when he was to return to duty. In October 2008, he received a call from his family and was told the Military Police came to his house and claimed he was AWOL from the Army. He immediately made arrangements to return to Fort Benning to rectify this misunderstanding. When he returned to Fort Benning, he was instructed to travel to Fort Sill, Oklahoma for processing. He attempted to explain but his command was unwilling to listen to his perspective. The applicant still had his original leave slip from 2007 which showed he was told to return home to heal, but his command accused him of forging the document. Once he arrived at Fort Sill he was threatened with a special court-martial which could result in brig time and a bad conduct discharge. He opted to request a discharge in lieu of court-martial with an entry level separation rather than run the risk of being convicted of a federal crime. His period of AWOL was due to a simple misunderstanding and he had no intention of committing any misconduct and believed the Army would contact him when he was to return to duty. The applicant wishes to restore his honor. In a records review conducted on 9 November 2021, 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: 19 December 2008 c. Separation Facts: (1) Date DD Form 458 (Charge Sheet): On 16 October 2008, the applicant was charged with: Charge I: Violating Article 86, UCMJ, for being AWOL from on or about 11 September 2007 until on or about 10 October 2007 and on or about 28 October 2007 until on or about 12 October 2008. (2) Legal Consultation Date: 16 October 2008 (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: 1 December 2008 / Uncharacterized 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 August 2007 / 5 years, 17 weeks b. Age at Enlistment / Education / GT Score: 17 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-3 / None / 3 months, 19 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: Five Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY)” to “Absent Without Leave (AWOL),” effective 11 September 2007; From “AWOL” to “Present for Duty (PDY),” effective 10 October 2007; From “PDY” to “AWOL,” effective 28 October 2007; From “AWOL” to “DFR,” effective 28 October 2007; and, From “DFR” to “PDY” effective 12 October 2008. CG Article 15, dated 23 October 2007, for without authority, absenting himself from his unit on or about 11 September 2007, until on or about 10 October 2007. The punishment consisted of a reduction to E-2; forfeiture of $340 pay per month for one month. Report of Return of Absentee, dated 12 October 2008, show the applicant surrendered and was returned to military control effective 12 October 2008. i. Lost Time / Mode of Return: 379 days (AWOL, 11 September 2007 – 10 October 2007) and (DFR, 28 October 2007 – 12 October 2008) / Returned to Military Control j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; attorney brief; DD Form 214; DD Form 458; separation packet; and letter of intent. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states through counsel he has become a respected member of his community; attended St. Phillip’s College and Northwest Vista College in Texas and is two semesters away from receiving his associate degree; and, has worked consistently since his separation. 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) 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. (4) 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.) (5) 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. (6) 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 waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: 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. DISCUSSION 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 applicant contends the narrative reason for the discharge needs to be changed to Secretarial Authority to include the SPD code and the reentry eligibility (RE) code. AR 635-5-1 (Separation Program Designator (SPD) codes) provides specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. 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 635-5, Separation 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 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 the SPD code should be changed. SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons 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. SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations. The SPD code specified by Army Regulations for a discharge under Chapter 10, is “KFS.” The applicant contends his RE-4 code should be changed to RE-1. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, the applicant was appropriately assigned an RE code of “4.” An RE code of “4” cannot be waived, and the applicant is no longer eligible for reenlistment. The applicant contends the period of AWOL was due to a simple misunderstanding and had a leave slip but his command disregarded it. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends he was injured which prevented him from completing basic training. The available medical evidence in the record is void of any indication the applicant was suffering from a disabling medical or mental condition during the discharge processing, warranting separation processing through medical channels. The applicant contends he has bettered himself since his discharge. 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. 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 applicant contends that he had a medical condition that excused him from the basis for the separation. The Board’s Medical Advisor, a voting member, reviewed DoD and VA medical records and found no BH diagnoses on the applicant. (2) Did the condition exist or experience occur during military service? Yes. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board’s Medical Advisor, even after applying liberal consideration to all the evidence before the Board, could not find any condition or experience that would excuse or mitigate the applicant’s basis for separation. (4) Does the condition or experience outweigh the discharge? No. The Board, after liberally considering all the evidence, including that supplied by the applicant regarding his ankle injury, did not find sufficient evidence to outweigh the basis for separation. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs to be changed to Secretarial Authority to include the SPD code. With no mitigating circumstances for the Board’s consideration, two AWOL charges do not warrant an upgrade to the reason code. (2) The applicant contends his RE-4 code should be changed to RE-1. With no mitigating circumstances for the Board’s consideration, two AWOL charges do not warrant an upgrade to the reenlistment code. The applicant is not qualified to reenlist. (3) The applicant contends the period of AWOL was due to a simple misunderstanding and had a leave slip but his command disregarded it. The Board liberally considered all the evidence in the record, including the applicant’s contention regarding a leave slip, and determined the basis for separation was appropriate. (4) The applicant contends he was injured which prevented him from completing basic training. There is evidence of an injury in the record. However, the applicant was AWOL for over a year and did not return until MPs visited his residence. (5) The applicant contends he has bettered himself since his discharge. 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 may 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. 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 voted not to change the applicant’s characterization of service because there were no mitigating factors for the Board to consider, as the applicant was discharged for two occasions of AWOL, equaling over a year of lost time. The applicant was in Entry Level Status and according to Army Regulation 635-200 an Honorable characterization of service is only authorized when it is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. The applicant did not supply sufficient evidence to support contentions, and 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 AR20210003391 1