1. Applicant's Name: a. Application Date: 2 November 2021 b. Date Received: 9 November 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 through legal counsel requests an upgrade to honorable and a reentry eligibility (RE) code change. The applicant seeks relief contending, in effect, that applicant served honorably for nearly two years prior to applicant's discharge, notwithstanding a single act of indiscretion. Applicant was an outstanding member and valuable asset of the United States Army with unlimited potential. The applicant had one single act of indiscretion where applicant made an uncharacteristically bad decision. The Applicant was performing their duties with exemplary remarks and had been since entering the United States Army. Although the applicant's single act of indiscretion was found to be in violation of UCMJ regulation, this single offense should not be enough to prevent applicant from obtaining an honorable discharge. The applicant has confessed to their mistake and given the opportunity, would have corrected the mistake and continued to serve Honorably. The applicant contends that the discharge took place over a decade ago and it is injustice to continue to characterize and punish applicant for this discharge especially considering the circumstances surrounding the Under Other Than Honorable Conditions Discharge. Although the applicant is still serving applicant's country the best way possible, applicant has goals to advance and exceed at his job but is unable to do so because of the undesirable discharge. The applicant loves his country and the United States Army and wishes to remain close to the US Army and veterans who have served. It is the same respect, motivation and devotions that drives the applicant's request as he wishes to be counted among the US Army honorable discharge members, which he considers to be an enormous part of his life. The applicant also believes he was not given a proper opportunity to mitigate or correct his mistake/behavior and instead he was administratively separated. In a telephonic personal appearance hearing conducted on 13 June 2022, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the applicant's severe family matters, the circumstances surrounding the discharge, and post service accomplishments. 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: 11 April 2007 c. Separation Facts: (1) Date DD Form 458 (Charge Sheet): On 1 March 2007, the applicant was charged with being absent from applicant's organization from 27 June 2006 until on or about 16 January 2007. (2) Legal Consultation Date: On 1 March 2007, the applicant voluntarily requested discharge in lieu of trial by court-martial under AR 635-200, Chapter 10, for charges preferred against applicant under the Uniform Code of Military Justice for violation of Article's 86, UCMJ going AWOL O/A 27 June 2006 to 16 January 2007. (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: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 21 March 2007 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 November 2005 / 3 years, 41 weeks b. Age at Enlistment / Education / GT Score: 30 /13 years / 89 c. Highest Grade Achieved / MOS / Total Service: E-3 / 52C10, Utilities Equipment Repairer / 10 months, 21 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: DA Form's 4187 (Personnel Action) which indicate the applicant's duty status changed from; In Transit (TRA) to Absent Without Leave (AWOL), effective 27 June 2006; AWOL to Dropped from the Rolls (DFR), effective 28 July 2006; and i. Lost Time / Mode of Return: Absent without leave for a period of 203 days (27 June 2006 to 15 January 2007) / mode of return was surrendered. (The DD Form 214 under review makes reference to 41 days of excess leave (2 March 2007 to 11 April 2007). j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Notice of Representation and Authorization; and 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 10b stipulates Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper. 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaivable 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 and a reentry eligibility (RE) code change. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. Evidence in the AMHRR indicates on 1 March 2007, the applicant was charged with being absent from applicant's organization from 27 June 2006 until on or about 16 January 2007. 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 635-8, 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 applicant seeks relief contending that applicant served honorably for nearly two years prior to applicant's discharge, notwithstanding a single act of indiscretion. The applicant was an outstanding member and valuable asset of the United States Army with unlimited potential. Applicant had one single act of indiscretion where applicant made an uncharacteristically bad decision. The applicant was performing applicant's duties with exemplary remarks and had been since entering the United States Army. Although the applicant's single act of indiscretion was found to be in violation of UCMJ regulation, this singe offense should not be enough to prevent applicant from obtaining an honorable discharge. The applicant has confessed applicant's mistake and given the opportunity, would have corrected the mistake and continued to serve Honorably. Although the applicant contends the incident that caused the discharge was a single act of indiscretion; it should be noted, although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's incident of misconduct adversely affected the quality of applicant's service, brought discredit on the Army, and was prejudicial to good order and discipline. The applicant contends that the discharge took place over a decade ago and it is injustice to continue to characterize and punish applicant for this discharge especially considering the circumstances surrounding applicant's Under Other Than Honorable Conditions Discharge. Although the applicant is still serving this country the best way possible, applicant has goals to advance and exceed at applicant's job but is unable to do so because of applicant's undesirable discharge. The applicant loves this country and the United States Army and wishes to remain close to the US Army and veterans who have served. It is the same respect, motivation and devotions that drives the applicant's request as applicant wishes to be counted among the US Army honorable discharge members, which applicant considers to be an enormous part of their life. The applicant also believes applicant was not given a proper opportunity to mitigate or correct the mistake/behavior and instead was administratively separated. The Army Discharge Review Board is authorized to consider post-service factors in the re- characterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 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 they provided in their written submissions and in support of their 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 DoD and VA medical records, applicant submissions and third-party statements, and found the applicant was diagnosed with Adjustment Disorder (DO) with Anxious Mood, which, in the opinion of the Board's Medical Advisor, after applying liberal consideration, could potentially mitigate a discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the diagnosis of Adjustment DO with anxious mood was made while applicant was on active duty. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that there are no mitigating BH conditions. While the applicant has been diagnosed with Adjustment DO with depressed mood, this condition does not mitigate applicant's offense of AWOL as it does not affect one's ability to distinguish right from wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that any of the applicant's medical conditions of Adjustment DO with anxious mood completely outweighed the basis for applicant's separation - AWOL. b. Response to Contention(s): (1) The applicant seeks relief contending they served honorably for nearly two years prior to applicant's discharge, notwithstanding a single act of indiscretion. The Board considered this contention and determined an upgrade to General, Under Honorable Conditions discharge is warranted based on the circumstances surrounding applicant's discharge, to include family issues, depression that led to drinking, and a language barrier contributing to applicant's difficulty comprehending the military judicial system. (2) The applicant contends that their discharge took place over a decade ago and it is injustice to continue to characterize and punish applicant for this discharge especially considering the circumstances surrounding applicant's Under Other Than Honorable Conditions Discharge. The Board considered this contention and determined an upgrade to General, Under Honorable Conditions discharge is warranted based on the circumstances surrounding applicant's discharge, to include family issues, depression that led to drinking, and a language barrier contributing to applicant's difficulty comprehending the military judicial system. c. The Board determined that the characterization of service was inequitable based on the applicant's severe family matters, the circumstances surrounding the discharge, and post service accomplishments. 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. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 to change the applicant's characterization of service to General, Under Honorable Conditions because the applicant's circumstances surrounding applicant's discharge, to include family issues, depression that led to drinking, and a language barrier contributing to applicant's difficulty comprehending the military judicial system, outweighed the applicant's AWOL basis of separation. Thus, the prior characterization is no longer appropriate. (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 AR20220002641 1