1. Applicant’s Name: a. Application Date: 16 October 2020 b. Date Received: 26 October 2020l c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to general/under honorable conditions. b. The applicant states, in effect that that they are requesting an upgrade to their discharge to utilize the GI Bill for their education. The GI Bill would improve their social, intellectual, and financial circumstances for their self and family. The education opportunity would also allow them to assist and provide an exemplary model for their fellow veterans and active service members. c. Board Type and Decision: In a records review conducted on 20 October 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE- 3 / UOTHC b. Date of Discharge: 10 September 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 5 March 2018 (2) Basis for Separation: Accessory to larceny between 27 August 2016 – 27 September 2016, Violation of military protection order, failure to obey lawful order, failure to report to appointed place of duty, AWOL on four occasions between 6 October 2016 – 15 January 2018. (3) Recommended Characterization: Under Other Than Honorable conditions (4) Legal Consultation Date: 27 April 2018 (5) Administrative Separation Board: N/A (6) Separation Decision Date / Characterization: 8 August 2018 / UOTHC 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 August 2015 / 3 years, 18 weeks b. Age at Enlistment / Education / GT Score: 19 / High School Graduate / 94 c. Highest Grade Achieved / MOS / Total Service: Private (E-2) / 13B10 Cannon Crew Member / 1 year, 7 months, 1 day d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWTSM, ASR g. Performance Ratings: N/A h. Disciplinary Action(s) / Evidentiary Record: (1) A Report of Mental Status Evaluation document signed 9 September 2016, provides that the applicant received a mental health evaluation to receive a clearance for administrative separation under AR 635-200 Chapter 13; they were cleared for separation. (2) Six Developmental Counseling Forms provides the applicant failed to report to morning formation on several different occasions between 7 March 2017 – 12 June 2017; they provided they overslept. They were counseled for being AWOL 06 March 2017 (one day) and 1 May 2017 (two days), and for failure to report for extra duty 25 April 2017. (3) A Record of Proceedings UCMJ document, dated 11 April 2017 provides the applicant received a nonjudicial punishment for violating Article 86 and Article 134 of the UCMJ; AWOL for 24 hours and disobeyed a lawful command. Punishment consisted of reduction in rank to private (E-1), forfeiture of half of pay for 2 months, restriction and extra duty for 45 days. (4) A Record of Proceedings UCMJ document, dated 27 June 2017 provides the applicant received a NJP for violating Article 86 on six separate occasions between 21 April 2017 – 12 June 2017; failure to go to their appointed place of duty at the prescribed time. Punishment consisted of reduction in rank to private (E-1), forfeiture of $799 pay for 2 months, post restriction and extra duty for 45 days. (5) A Personnel Action Document provides that the applicants duty status changed from present for duty (PDY) to absent without leave (AWOL) on 16 August 2017. The applicant’s duty status changed from AWOL to dropped from rolls (DFR) on 18 September 2017; they contacted another service member who stated the applicant “sounds depressed and suicidal”. The applicant’s duty status changed from DFR to Civilian Confinement on 14 January 2018. (6) On 12 January 2018, the applicant received a behavioral health Initial evaluation while confined at the Montgomery County jail; they were placed on a suicide watch. (7) A Memorandum, Department of the Army, 101st Airborne Division Artillery, Fort Campbell, Kentucky subject: Separation under AR 635-200, Chapter 14-12c, dated 5 March 2018 provides the applicant’s immediate commander notified them of their intent to separate them of Under Other Than Honorable Conditions for the following reasons. On 5 March 2018, the applicant acknowledged the commander’s notification and basis for separation, their available rights, to include the right to consult with counsel prior to submitting their election of rights. * They were an accessory to larceny between 27 August 2016 – 27 September 2016 * They violated a military protection order * Failed to obey a lawful order from a commissioned officer * Failed to report to appointed place of duty between 19 April 2016 – 19 April 2017 * AWOL on four separate occasions between 6 October 2016 – 15 January 2018 (8) A Memorandum, Department of the Army, Fort Campbell CID Office, Fort Campbell, Kentucky subject: Law Enforcement Report – Corrected Final/Collateral, dated 16 March 2018 provides the applicant was arrested on 15 January 2016 in connection to the death of a service member. They were charged with First Degree Homicide. They provided a gun to another individual who shot and killed a service member; the applicant was the driver of the vehicle. (9) On 27 April 2018, the applicant elected to not submit statements on their behalf; It is unclear if the applicant consulted with counsel, they did not initial consulting with counsel and the document of void of signatures. (10) On 8 August 2018 the appropriate authority approved the separation and directed the applicant be separated with an Under Other Than Honorable Conditions characterization of service. (11) A DD Form 214 shows on 10 September 2018 the applicant was discharged accordingly. They completed a total net active service of 1 year 7 months and 1 day. i. Lost Time / Mode of Return: AWOL 16 August 2017 – 15 January 2018 / Civilian Confinement j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Depression, anger issues and suicidal ideations. 5. APPLICANT-PROVIDED EVIDENCE: A DD Form 293 (Discharge Review) application. 6. POST SERVICE ACCOMPLISHMENTS: None submitted in support of 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), dated 25 September 2019, 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 provides the authorized types of characterization of service or description of separation. (1) 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. (2) 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. (3) An 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. (4) 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. 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. A soldier subject to this discharge under this regulation will be considered and processed for discharge even though he/she has filed an appeal or has stated his/her intention to do so. Paragraph 14-12c, states 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. (5) 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: (1) RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. (2) RE-3 Applies to: 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. (3) 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. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. a. The applicant requests an upgrade to honorable. The applicant’s DD Form 214 provides that the applicant received a under other than honorable conditions characterization of service (UOTHC), which is normally considered appropriate for a soldier discharged for misconduct (serious offense). b. Based on the available evidence the applicant enlisted in the Army at the age of 19. They started failing to report to their place of duty on time, they were reporting hours late and being AWOL. They received their first NJP 13 April 2017 for being AWOL and disobeying a lawful command; failing to report every two hours. After issuance of the NJP the applicant continued failing to report to morning formation on six different occasions between 25 April 2017 – 12 June 2017. They received their second NJP 11 July 2017. One month later 16 August 2017 they were reported AWOL and later dropped from rolls. They were arrested by civilian authorities 5 months later and charged with first degree homicide. c. Administrative irregularity occurred in the proper retention of required records; specifically, the counsel consult document is void of required signatures, with administrative error; however, the applicant elected not to submit a statement(s) on their behalf. Additionally, the AMHRR is void of a medical examination, and documents that show violation of a military protection order or accessory to larceny, or a separation approval. However, the records do provide the applicant was properly notified of the intent to separate and acknowledged the basis for separation and their available rights and a properly constituted DD Form 214 show the applicant was separated under the provisions of Army Regulation 635-200 with a characterization of service of Under Other Than Honorable Conditions. d. Chapter 14 establishes policy and prescribes procedures for members being separated for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 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. e. Published Department of Defense guidance indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 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 diagnosis: Adjustment Disorder. (2) Did the condition exist or experience occur during military service? Yes. The applicant was diagnosed with an Adjustment Disorder in-service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the condition is a low-level difficulty coping with stressors that does not impair an individual’s ability to know right from wrong, make conscious choices, and understand the consequences of their behavior. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the available evidence did not support a conclusion that the applicant’s Adjustment Disorder outweighed the basis for applicant’s separation – intimate partner violence, accessory to larceny, violating a military protective order, failure to obey a lawful order, homicide, FTRs and AWOLs – for the aforementioned reasons. b. Response to Contention(s): The applicant states their requested relief is to assist in receiving education benefits. The Board considered this contention and determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. c. The Board determined that the discharge is, at this time, proper and equitable, considering the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant’s Adjustment Disorder, did not excuse or mitigate the intimate partner violence, accessory to larceny, violating a military protective order, failure to obey a lawful order, homicide, FTRs and AWOL offenses. Based on a preponderance of evidence, the Board determined that the reason for the applicant’s separation and the character of service the applicant received upon separation were 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. Furthermore, the applicant’s Under Other Than Honorable Conditions discharge was proper and equitable as the applicant’s conduct fell below that level of satisfactory service warranting a General discharge or meritorious service warranted for an upgrade to Honorable discharge. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, as the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change 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 AR20210007842 1