1. Applicant's Name: a. Application Date: 13 May 2020 b. Date Received: 4 March 2022 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 through legal counsel requests an upgrade to honorable or general (under honorable conditions), a narrative reason change to reflect "Secretarial Authority," with a separation authority of "AR 635-200, Chapter 5-3, and a corresponding separation code of "JFF." The applicant seeks relief contending, in effect, that the separation was initiated in lieu of trial by court-martial for a violation of Article 85, yet severe family and financial problems mitigated the severity of the offense. The applicant does not contend that his discharge was procedurally defective. He acknowledges that his separation was consistent with the procedural requirements for separation in lieu of trial by court-martial, that the separation was within the discretion of the separation authority, and the he was afforded administrative due process prior to separation. He contends the characterization of service was too harsh and it is believed the discharge is therefore inequitable. The applicant believes severe family and financial problems mitigated his lapse in judgment causing him to remain away from his unit. Also given his overall quality of service, including combat service and post-service accomplishments the characterization of service received was too harsh. The applicant contends that he was injured while in Afghanistan and believes that a discharge upgrade would allow him to pursue benefits from the Department of Veterans Affairs with respect to those injuries. In a telephonic personal appearance hearing conducted on 21 March 2022, and by a 4 - 1 vote, the Board determined that the characterization of service was too harsh based on the applicant's quality of service, to include combat service, the applicant's severe family matters that contributed to the basis for applicant's separation, and post service accomplishments, and therefore the Board determined that the current discharge characterization is inequitable. 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. 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: 13 June 2005 c. Separation Facts: (1) Date DD Form 458 (Charge Sheet): On 20 April 2005, the applicant was charged with being absent without authority and with intent to remain away permanently from his unit in desertion from 6 November 2003 until on or about 8 April 2005. (2) Legal Consultation Date: 25 April 2005 (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 approved with a characterization of service of under other than honorable conditions. (5) Separation Decision Date / Characterization: 13 May 2005 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 February 2002 / 5 years b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 108 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B1P, Infantryman / 1 year, 10 months, 7 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (17 January 2003 to 28 August 2003) f. Awards and Decorations: ACM, GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: DA Forms 4187, indicating the applicant's duty status was changed as follows: Present for Duty (PDY) to Absent without Leave (AWOL), effective 6 November 2003; AWOL to Dropped from Rolls (DFR), effective 6 December 2003; and DFR to PDY, effective 8 April 2005 i. Lost Time / Mode of Return: The DD Form 214 under review makes reference to 521 days of lost time (6 November 2003 to 7 April 2005) / mode of return unknown. j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; applicant's declaration/self-authored letter; brief in support of application; military records to include (enlistment documents, orders, separation packet, and enlistment record brief), birth certificate of children; certificated of marriage, Bachelor of Science degree certificate and transcript; several letters of support; and DD Form 214 for the period of service under review. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends that since discharge, he has done absolutely his best to live an impactful life; serving others when and how possible. He teaches his children and other young men the importance of service and good judgement. He has never been accused or convicted of a crime since his separation from the Army and has had a steady and fulfilling career that helps to support a family of nine. 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 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 or general (under honorable conditions), a narrative reason change to reflect "Secretarial Authority," with a separation authority of "AR 635-200, Chapter 5-3, and a corresponding separation code of "JFF." The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. Evidence in the record indicates separation action was initiated against the applicant for being absent without authority and with intent to remain away permanently from his unit in desertion from 6 November 2003 until on or about 8 April 2005. The applicant seeks relief contending that the separation was initiated in lieu of trial by court- martial for a violation of Article 85, yet severe family and financial problems could mitigate the severity of the offense. The applicant does not contend that his discharge was procedurally defective. He acknowledges that his separation was consistent with the procedural requirements for separation in lieu of trial by court-martial, that the separation was within the discretion of the separation authority, and the he was afforded administrative due process prior to separation. He contends the characterization of service was too harsh and therefore believes the discharge is inequitable. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, in consultation with legal counsel, voluntarily requested, in writing, a discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and indicated an understanding an under other than honorable conditions discharge could be received, and the discharge would have a significant effect on eligibility for veterans' benefits. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant 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 635-5, 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 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 severe family and financial problems mitigated his lapse in judgment causing him to remain away from his unit. However, it should be noted, the applicant had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. Also given his overall quality of service, including combat service and post-service accomplishments the characterization of service received was too harsh. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered and the applicant is to be commended on his accomplishment. Additionally, the applicant contends that he was injured while in Afghanistan and believes that a discharge upgrade would allow him to pursue benefits from the Department of Veterans Affairs with respect to those injuries. However, the service record does not support the applicant's contention of any injury while in Afghanistan, and no evidence to support this contention has been submitted to corroborate the discharge was the result of any medical condition. Further, the record does not contain any medical evidence to indicate a problem existed at the time of applicant's discharge that would have rendered the applicant disqualified for further military service at the time of discharge. 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 documents: None b. The applicant presented the following additional contentions: Applicant and counsel provided oral arguments in support of applicant's contentions provided in written submissions and in support of applicant's other documentary evidence. c. Counsel / Witnesses / Observers: 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? No. The Board's Medical Advisor reviewed DoD and VA medical records and found no mitigating BH diagnoses on the applicant. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused or mitigated applicant's discharge. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contentions: (1) The applicant seeks relief contending that the separation was initiated in lieu of trial by court-martial for a violation of Article 85, yet severe family and financial problems mitigated the severity of the offense. The Board considered this contention as one of the significant factors that led to the Board's vote to upgrade the characterization of service. (2) Given the applicant's overall quality of service, including combat service and post- service accomplishments the characterization of service received was too harsh. The applicant contends the characterization of service was too harsh and it is believed the discharge is therefore inequitable. The Board considered this contention as one of the significant factors that led to the Board's vote to upgrade the characterization of service. (3) The applicant contends that he was injured while in Afghanistan and believes that a discharge upgrade would allow him to pursue benefits from the Department of Veterans Affairs with respect to those injuries. The Board 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 characterization of service was too harsh based on the applicant's quality of service, to include combat service, the applicant's severe family matters that contributed to the basis for applicant's separation, and post service accomplishments, and therefore the Board determined that the current discharge characterization is inequitable. d. The applicant's counsel cited Prior ARDB Decisions: AR20160006566, AR20170000889, AR20170001284, AR20170005149, AR20170006598, AR20170007035, and AR20170017760. While the ADRB considers each applicant's case based on those applicable statutory and regulatory requirements with respect to the specific facts surrounding that applicant's discharge, applicant's cited cases may provide assistance to the Board during its deliberations. Further, these seven referenced previous ADRB decisions do not provide any persuasive value for the Board because there are such significant variations between these cited cases and this applicant's case. First, the six later referenced cases (AR20170000889, AR20170001284, AR20170005149, AR20170006598, AR20170007035, and AR20170017760) all had ADRB decisions that were based on an applicant's behavioral health issue(s) that mitigated the basis for those applicant's separation, whereas, this applicant has no mitigating behavioral health condition, and therefore the Board found no value in considering these six cited cases during its deliberations for this applicant's case. Of additional note, only three of those six cases had a similar basis for separation (AWOL) as the applicant in this case, but even those AWOL cases are easily differentiated from each other by the specific circumstances surrounding those unique AWOL cases. Finally, the first referenced case's (AR20160006566) applicant, the only applicant who just like the applicant in this case did not have any claim of a mitigating behavioral health condition, was discharged based on a drug abuse issue, but of significant note, was involuntarily discharged under AR 635-200 Chapter 14, unlike the applicant who voluntarily accepted an under other than honorable discharge in accordance with AR 635- 200 Chapter 10. Therefore, the Board similarly found no value in considering that first cited case (AR20160006566) during its deliberations for this applicant's case. e. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to General, Under Honorable Conditions because the current characterization of service was too harsh, and therefore inequitable, when looking to the applicant's quality of service, to include combat service, the applicant's severe family matters that contributed to the basis for applicant's separation, and post service accomplishments. (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. 11. 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: 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 AR20220001910 6