1. Applicant's Name: a. Application Date: 20 May 2021 b. Date Received: 20 May 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 conditions. The applicant requests an upgrade to honorable, change his narrative reason for discharge to "For the Convenience of the Government," and change his reentry eligibility (RE) code to a 1. The applicant through legal counsel seeks relief contending, in effect, that his discharge was unfair at the time and remains so now. The discharge was a material error and needs to be corrected. The applicant requests liberal consideration. The applicant contends that the underlying basis of his separation was procedurally defective at the time of the discharge, that the adverse action, to include the administrative discharge was unfair at the time, and the under other than honorable condition is inequitable now. The applicant request that the derogatory information in his record be removed from his record. He asks that the appeal through the Discharge Review Board be given the utmost scrutiny. The applicant also contends that he now has a stable and productive life and is receiving treatment for PTSD. He is a good father and worked hard to be there for his family. He served honorably on Active Duty and now believes his current characterization of service serves a purpose. In a telephonic hearing conducted on 7 March 2022, and by a 3 - 2 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (OBHI and asserted PTSD diagnoses) and post service accomplishments. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, Chapter 15, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF, and a change to the reentry eligibility (RE) code to 3. Please see Section 10 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: 23 January 2013 c. Separation Facts: (1) (1) Date DD Form 458 (Charge Sheet): On 12 December 2012, the applicant was charged with: Charge I: Violation of Article 85, for failing to go at the time prescribed to his appointed place of duty and on or about 17 August 2012, without authority and with intent to remain away absent himself from his unit in desertion until he was apprehended on or about 7 November 2012; Charge II: Violation of Article 86, for failing to go at the time prescribed to his appointed place of duty on 8 May 2012 and 21 May 2012, and without authority being absent from his unit on or about 18 June 2012 until on or about 20 June 2012; and Charge III: Violation of Article 91, for having received a lawful order from Sergeant First Class A.D.M., a superior noncommissioned officer, to go home and get his gear, an order which was his duty to obey, on or about 15 May 2012, which he willfully disobeyed the same. (2) Legal Consultation Date: 19 November 2012 (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: The company commander and battalion commander recommended that the applicant's request for discharge be disapproved. The brigade commander recommended that the applicant's request for discharge be approved and that the applicant be discharged from the service with an Under Other Than Honorable Conditions characterization of service. (5) Separation Decision Date / Characterization: 9 January 20 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 August 2006 / 6 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 104 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 6 years, 14 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (13 October 2007 to 14 November 2008) and Afghanistan (12 May 2010 to 11 My 2011) f. Awards and Decorations: ARCOM, VUA, MUC, AGCM, NDSM, ACM-CS, ICM-CS, GWTSM, ASR, OSR-2, NATOMDL, EIB g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: DA Forms 4187, indicating the applicant's duty status was changed as follows: Absent Without Leave to Dropped from Rolls, effective17 September 2012; and MCA to Present for Duty, effective 10 January 2013 i. Lost Time / Mode of Return: The DD Form 214 under review makes reference to several periods of time lost totaling 147 days: 31 days (17 August 2012 to 16 September 2012); 51 days (17 September 2012 to 6 November 2012) and 65 days (7 November 2012 to 10 January 2013) j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: Online application; legal brief; and letters of support; 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), 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. (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 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. delete if not applicable (8) Chapter 15 provides for the basic separation of enlisted personnel for the convenience of the government. It 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 memorandums. Secretarial separation authority is normally exercised on a case-by-case basis. e. 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-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. 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. 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 through legal counsel requests an upgrade to honorable, change his narrative reason for discharge to "For the Convenience of the Government," and change his reentry eligibility (RE) code to a 1. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. Evidence in the AMHRR indicates separation action was initiated against the applicant for failing to go at the time prescribed to his appointed place of duty, without authority and with intent to remain away absent himself from his unit in desertion until he was apprehended on or about 7 November 2012; failing to go at the time prescribed to his appointed place of duty on 8 May 2012 and 21 May 2012, and without authority being absent from his unit on or about 18 June 2012 until on or about 20 June 2012; and for having received a lawful order from Sergeant First Class A.D.M., a superior noncommissioned officer, to go home and get his gear, an order which was his duty to obey, on or about 15 May 2012, which he willfully disobeyed the same. The applicant contends that his discharge was unfair at the time and remains so now. The discharge was a material error and needs to be corrected. The applicant requests liberal consideration. The applicant contends that the underlying basis of his separation was procedurally defective at the time of the discharge, that the adverse action, to include the administrative discharge was unfair at the time, and the under other than honorable condition is inequitable now. The applicant request that the derogatory information in his record be removed from his record. He asks that the appeal through the Discharge Review Board be given the utmost scrutiny. The evidence of record confirms the applicant was charged with the commission of several offenses 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 was separated under the provisions of Chapter 10, AR 635-200, with an under other than honorable conditions 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 635-8, 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 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 also contends that he now has a stable and productive life and is receiving treatment for PTSD. He is a good father and worked hard to be there for his family. He served honorably on Active Duty and now believes his current characterization of service serves a purpose. The applicant's contentions were noted; however, it should be noted the service record contains no evidence of Post-Traumatic Stress Disorder diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): None. b. The applicant presented the following additional contention(s): Applicant and counsel provided oral arguments in support of the contentions provided in the written submissions and in support of documentary evidence. c. Counsel / Witness(es) / Observer(s): 10. 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. The applicant was diagnosed with an Adjustment Disorder in-service. The applicant is asserting PTSD and TBI. (2) Did the condition exist or experience occur during military service? Yes. The Board arrived at this finding based upon the applicant diagnoses with an Adjustment Disorder in- service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor determined that the medical condition or experience does not excuse or mitigate the basis of separation. (4) Does the condition or experience outweigh the discharge? Yes. Based on liberally considering all the evidence before the Board, the ADRB focused on no medical mitigation or documentation to support the asserted PTSD. However, all misconduct and abrupt change in behavior occurred after second combat deployment. Thus, the Board believes PTSD may have been a factor in spite of no medical mitigation. Therefore, the Board determined the experience outweighed the basis of separation. b. Response to Contention(s): (1) The applicant contends that the discharge was unfair. The Board considered this contention and the applicant's assertion of PTSD/TBI. Although the evidence presented before the Board did not support the asserted PTSD/TBI, as there was no sufficient evidence of said diagnoses in the official or medical records. However, all misconduct and abrupt change in behavior occurred after second combat deployment. Thus, the Board believes PTSD may have been a factor in spite of no medical mitigation. Therefore, the Board voted to grant relief in the form of an upgrade in the characterization of service. (2) The applicant also contends having a stable and productive life and receiving treatment for PTSD. 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 determined the experience outweighed the basis of separation and voted to grant relief in the form of an upgrade in the characterization of service. c. The Board determined the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (OBHI and asserted PTSD diagnoses) and post service accomplishments. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635- 200, Chapter 15, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF, and a change to the reentry eligibility (RE) code to 3. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable although the applicant did not have a BH condition which mitigated the applicant's misconduct of AWOL. However, all misconduct and abrupt change in behavior occurred after second combat deployment. Thus, the Board believes PTSD may have been a factor in spite of no medical mitigation. Thus the prior characterization is no longer appropriate. (2) The Board voted to change the applicant's separation authority to AR 635-200, Chapter 15, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF. (3) The Board voted to change the RE code to RE-3. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Secretarial Authority / JFF d. Change RE Code to: RE-3 e. Change Authority to: AR 635-200, Chapter 15 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 AR20210012247 9