1. Applicant's Name: a. Application Date: 04 August 2020 b. Date Received: 16 November 2020 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 honorable and a narrative reason change. (1) The applicant states in effect that they have matured after hitting rock bottom. They have 2 amazing kids now that need stability and a mature role model. They are trying to look out for their children's future. The applicant fully understands that leaving the army the way they did was wrong, and they hope to teach their children to not be afraid to make wrongdoings right in their lives. (2) They were not the most honorable person when they joined the Army, however they are trying to make up for it now in life. When they were 11 years old, they were raped and turned to drugs to self-medicate. After disclosing the rape to their parents, they were admitted into psychiatric hospital and diagnosed with PTSD, bipolar disorder and anxiety. At the age of 17, the applicant quit high school to obtain their GED and got married. They spent 2 years in an abusive marriage, and to escape their spouse they enlisted in the Army at 19 years old. (3) The applicant states they joined the military for many wrong reasons and did not realize the extent of it all. When they joined the army, they still had a drug problem and was arrested in 2009 for public intoxication and shortly after had another suicide attempt. In 2010 they found out they were expecting a child, they stopped doing drugs, did not have any more suicide attempts and drove to Fort Knox to get discharged from the army. b. Board Type and Decision: In a records review conducted on 29 September 2023, and by a 3-2 vote, the Board determined that the characterization of service was inequitable based on the applicant's post service accomplishments, homelessness, and the matters surrounding the absent without leave incident. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: In Lieu of Trial by Court Martial / AR 635-200, Chapter 10 / KFS / RE- 4 / UOTHC b. Date of Discharge: 11 June 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: AWOL from 14 October 2006 to 11 May 2010 (3) Recommended Characterization: UOTHC (4) Legal Consultation Date: 13 May 2010 (5) Administrative Separation Board: N/A (6) Separation Decision Date / Characterization: 02 June 2010 / UOTHC 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 April 2006 / 4 years, 1 month, 22 days b. Age at Enlistment / Education / GT Score: 19 / GED / NIF c. Highest Grade Achieved / MOS / Total Service: E-1 / 92F10 Petroleum Supply Specialist / 6 months, 25 days. d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: N/A h. Disciplinary Action(s) / Evidentiary Record: (1) A Record of Medical History document signed 31 March 2006 provides that the applicant "marked no" to the question "Have you ever had or do you now have" * received counseling of any type * depression * treated or evaluated for a mental condition * attempted suicide * used illegal or abused prescription drugs. * been a patient in any type of hospital (2) A Personnel Action Document provides that the applicants duty status changed from present for duty (PDY) to absent without leave (AWOL) on 14 October 2006. * The applicant's duty status changed from AWOL to dropped from rolls (DFR) on 13 November 2006 * The applicant's duty status changed from DFR to attached/present for duty on 11 May 2010 (3) A letter, Department of The Army, Fort Lee Virginia, dated 24 October 2006 provides that a letter was mailed to the applicants Next-of-Kin informing them of the applicant's AWOL status. The letter was mailed a second time on 02 November 2006. (4) A DD Form 458 (Charge Sheet) provides that on 13 November 2006 the applicant was being charged for violating Article 86 (AWOL) of the Uniform Code of Military Justice (UCMJ). The document provides that on or about 14 October 2006 the applicant was absent without leave from their unit located at Fort Lee, VA and did so remain absent. (5) A Deserter/Absentee Wanted by The Armed Forces document signed 13 November 2006 provides that the commanding officer investigated the status of the applicants whereabouts, which included notifying the applicants next of kin to urge their voluntary return to military control. (6) A Report of Return of Absentee document signed 11 May 2010 provides that the applicant surrendered to military authorities on Fort Knox, Kentucky. (7) Orders 132-2, effective date 11 May 2010 provides that the applicant was assigned to the Special Processing Company, Fort Knox Kentucky with additional instructions stating "soldier surrendered to military authorities 1110 hours, 11 May 2010" (8) A memorandum, Department of the Army, Fort Knox, Kentucky subject: Medical and Mental Health Examination for Separation Statement of Option dated 12 May 2010, provides that the applicant waived receiving a separation medical examination and a mental health evaluation. (9) A DD Form 458 (Charge Sheet) provides that on 13 May 2010 the applicant was being charged for violating Article 86 (AWOL) of the Uniform Code of Military Justice (UCMJ). The document provides that on or about 14 October 2006 without authority the applicant was absent from their organization located at Fort Lee, Virginia a did remain absent until or about 11 May 2010 (10) A memorandum, Department of the Army, Fort Knox, Kentucky subject: Request for discharge in Lieu of Trial by Court-martial dated 13 May 2010 provides that the applicant consulted with counsel and voluntary requested discharge in lieu of trial by court-martial. (11) A memorandum, Department of the Army, Fort Knox, Kentucky subject: Admission of AWOL for Administrative Purposes, dated 13 May 2010 provides that the applicant voluntary declared that there were absent without leave from 14 October 2006 to 11 May 2010. (12) A Request and Authority for Leave document signed 14 May 2010, provides that 3 days after surrendering to military control on Fort Knox, Kentucky the applicant's voluntary excess leave request was approved. The leave was indefinite without pay and allowances. (13) A memorandum, Department of the Army, Fort Knox, Kentucky subject: Request for discharge in Lieu of Trial by Court-martial dated 02 June 2010 provides that the applicants voluntary request was approved with an Under Other Than Honorable Conditions characterization. (14) A Certificate of Release or Discharge from Active-Duty document provides that the applicant was separated from the Army on 11 June 2010 with a total NET active service of 6 months, 25 days. i. Lost Time / Mode of Return: 3 years, 6 months, 27 days (AWOL, 14 October 2006 - 11 May 2010) / Surrendered to military control. j. Behavioral Health Condition(s): (1) Applicant provided: The applicant states they have PTSD, and other mental health issues, they submitted a self-authored medication list, however they failed to submit any medical documentation to support their conditions. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: A DD Form 293 (Discharge Review) application, a 4-page self-authored letter, 2-college acceptance letters, a copy of their licensed practical nurse license, 2 photographic pictures and the documents listed below to support their petition: * A copy of a Record of Emergency Data document signed 12 May 2010 provides that the applicant divorced and remarried sometime between October 2016 - May 2010 * SGLI documents * A copy of a charge sheet, charging them with violating Article 86 of the UCMJ (AWOL) * A copy of their separation orders * A copy of their member 1 and member 4 DD Form 214 * A copy of their request for discharge in Lieu of Trial by Court-Martial memorandum. * A copy of a DA Form 31, which provides the applicant's voluntary excess leave request was approved for indefinite leave starting 14 May 2010, without pay and allowances * A copy of DA Form 2648 * A self- Authored medication list, that provides the applicant was prescribed 8 different medications for anxiety, depression, arthritis, sleeplessness, nightmares, mood, bipolar and itching * A letter from the Social Security Administration dated 15 July 2020, which provides that an application for benefits was filed 6. POST SERVICE ACCOMPLISHMENTS: The applicant became a parent to two children, stopped using drugs, received their licensed practical nurse (LPN) license, and is currently enrolled in an LPN to registered nurse (RN) badge program at Walter State Community College. 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 (Active Duty Enlisted Administrative Separations) provides the basic authority for the separation of enlisted personnel. Chapter 3, Section II 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. When authorized, it 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. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service, they have been awarded a personal decoration or if warranted by the circumstances of a specific case. (4) Chapter 10, Discharge in Lieu of Trial by Court Martial is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate, unless the record was so meritorious it would warrant an honorable (a) After receiving legal counseling, the soldier may elect to submit a request for discharge in lieu of trial by court-martial. The soldier will sign a written request, certifying that they have been counseled, understands their rights, and may receive a discharge under other than honorable conditions. (b) The following data will accompany the request for discharge: * A copy of a Charge Sheet (DD Form 458) * Report of medical examination and mental status evaluation, if conducted * A complete copy of all reports of investigation * Any statement, documents, or other matter considered by the commanding officer in making his/her recommendation, including any information presented for consideration by the soldier or consulting counsel * A statement of any reasonable ground for belief that the soldier is, or was at the time of misconduct, mentally defective, deranged, or abnormal. When appropriate, evaluation by a psychiatrist will be included. e. Army Regulation 630-10 (Absence Without Leave, Desertion, and Administration of Personnel Involved in Civilian Court Proceedings) provides policies and procedures for reporting unauthorized absentees and deserters, the administering of absent without leave (AWOL) personnel and deserters, returning absentees and deserters to military control and the surrendering of military personnel to civilian law enforcement authorities. (1) Paragraph 4-4c, states classification of an absence is dependent upon such factors as the following: * Orders and instructions, written and oral, the Soldier received before and during the absence * Age, military experience, and general intelligence of the soldier * Number and type of contact the soldier had with the military while absent * Complete or incomplete results of a court-martial decision (2) Paragraph 4-4d, states an absence immediately following authorized leave is classified as AWOL. Should the absence subsequently be reclassified, the soldiers leave is corrected to reflect the reclassified absence, except if the absence is caused by the following: * Mental incapacity * Detention by civilian authorities * Early departure of a mobile unit due to operational commitments f. 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. g. 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-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 * 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 * 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): Standard of Review. 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 available evidence provides the applicant completed a pre-physical questionnaire for entrance into the U.S Army that shows they selected "no" for depression, use of illegal drugs, suicide attempts and being a patient at any hospital. (1) At the time of enlistment the applicant was 19 years old and married. While in a trainee status, the applicant went AWOL and remained AWOL without communication for a 3 years, 6 months, and 27 days prior to surrendering to military authorities. (2) Upon returning to an active-duty status the executed an admission of being AWOL and voluntary requested to be discharged in lieu of trial by court-martial and under the provisions of Army Regulation 635-200, Chapter 10 and elected not to submit a statement on their behalf. (3) A medical and mental examination was not required for a voluntary request ILO Trial by Court-Martial; however, the AMHRR provides that the applicant did not request a separation medical and mental examination. b. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. 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. For 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. c. 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. KURTA FACTORS. 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 which were void of a behavioral health condition or experience. The applicant did not submit civilian provider documentation either. However, the applicant's statement asserted pre-enlistment Post Traumatic Stress Disorder, OBH, non-military sexual assault, and IPV which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist or experience occur during military service? Yes. Based on applicant's statement alone, Other Behavioral Health, Post Traumatic Stress Disorder, Intimate Partner Violence. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined the advisor could not provide a medical opine on whether the applicant's asserted conditions actually mitigate the applicant's misconduct for due to a lack of supporting documentation. (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 Post Traumatic Stress Disorder, Other Behavioral Health, non-military sexual assault, and Intimate Partner Violence assertions outweighed the basis for applicant's separation for absence without leave for the aforementioned reasons. b. Response to Contention(s): The applicant did not make any contentions. The Board voted to upgrade the characterization of service based on the applicant's length and quality of service, and post-service accomplishments. c. The Board determined that the characterization of service was inequitable based on the applicant's post service accomplishments, homelessness, and the matters surrounding the absent without leave incident. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them. d. Rationale for Decision: (1) The Board voted to grant relief by upgrading the applicant's characterization of service to General, Under Honorable Conditions. Although the Board found the discharge proper and equitable and there were no behavioral health diagnoses which mitigated the misconduct to warrant relief, it was found that the discharge has served its purpose. Thus, making the current reason for discharge improper. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code as the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: General, Under Honorable Conditions c. Change Reason / SPD code to: No change d. Change RE Code to: No change e. Change Authority to: AR 635-200 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 AR20210008266 1