1. Applicant's Name: a. Application Date: 1 August 2022 b. Date Received: 20 October 2022 c. Counsel: 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, through counsel an upgrade to honorable along with a reentry (RE) code and narrative reason change. The applicant's counsel further requests removal of derogatory information from the applicant's record. The applicant seeks relief contending, in effect, the applicant was being bullied and harassed due to the applicant's gender by the command and the command's answer was to push the applicant out. The applicant's command counseled the applicant to quit coming to training. The command's reason for the discharge was deficient nor did the command offer the applicant the opportunity for rehabilitation. The applicant was never offered or provided legal counsel. The discharge no longer serves a purpose. The applicant obtained a bachelor's degree and is working as a nurse. The applicant was accepted to a doctorate nursing program which is on hold b. Board Type and Decision: In a personal appearance conducted on 10 July 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, the circumstances surrounding the discharge and post-service accomplishments. Therefore, 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 1. 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: Unsatisfactory Participation / NGR 600-200, Paragraph 6-35j / NA / RE-3 / General (Under other than Honorable Conditions) b. Date of Discharge: 26 August 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 8 March 2010 (2) Basis for Separation: The applicant was informed of the following reasons: Unauthorized Absence (AWOL) from Schedule Training in accordance with AR NGR 600-200 (dtd 1 October 2006); 8-35j (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: The applicant waived the right to consult with counsel. (5) Administrative Separation Board: The applicant waived the right to counsel for representation at the board hearing. (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 October 2007 / 8 years (ARNG) b. Age at Enlistment / Education / GT Score: 19 / GED / NIF c. Highest Grade Achieved / MOS / Total Service: E-3 / 92Y10, Unit Supply Specialist / 2 years, 10 months, 16 days d. Prior Service / Characterizations: RA, 20 February 2008 - 2 July 2008 / UNC (IADT) (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: ASR, NDSM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Letters of Instruction - Unexcused Absence, reflects the applicant was absent from a scheduled unit training assembly (UTA) or a multiple unit training assembly (MUTA) for the following periods: (The applicant signed acknowledging receipt of the Letters if Instruction but did not provide a reason for the absences) 4 - 6 December 2009 5 - 7 February 2010 6 - 7 March 2010 i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: NIF (2) AMHRR Listed: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Email, letters of support-5, Legal Brief, NGB Form 22, Separation File, personal statement, letters of support-10. 6. POST SERVICE ACCOMPLISHMENTS: The applicant obtained a bachelor's degree and is working as a nurse. The applicant was accepted to a doctorate nursing program which is on hold. 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. National Guard Regulation (NGR) 600-200, establishes standards, policies, and procedures for the management of the Army National Guard (ARNG) and the Army National Guard of the Reclassification; Personnel Management; Assignment and Transfer, including interstate transfer; Special Duty Assignment Pay; Enlisted Separations; and Command Sergeant Major Program. Chapter 6 sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG/ARNGUS. Paragraph 6-35j defers to AR 135- 178, chapter 13, Unsatisfactory Participation. e. Army Regulation 135-178 prescribes the policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the United States (ARNGUS) and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. (1) Paragraph 2-9a prescribes an honorable characterization 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) Paragraph 2-9b, prescribes, if a Soldier's service has been honest and faithful, it is appropriate to characterize that service as general (under honorable conditions). Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the Soldier's conduct or performance of duty outweigh positive aspects of the Soldier's military record. (3) Paragraph 2-9c, prescribes the service may be characterized as under other than honorable conditions only when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security reasons, and under other circumstances. (4) Chapter 12 (previously Chapter 13) provides in pertinent part, that individuals can be separated for being an unsatisfactory participant. Soldier is subject to discharge for unsatisfactory participation when it is determined that the Soldier is unqualified for further military service because: The Soldier is an unsatisfactory participant as prescribed by AR 135- 91, chapter 4; Attempts to have the Soldier respond or comply with orders or correspondence. (5) Chapter 13 (previously Chapter 14) provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: 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. 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 requests, through counsel an upgrade to honorable along with a RE code and narrative reason change. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant's counsel requests the applicant narrative reason for the discharge be changed. The applicant was separated under the provisions of NGR 600-200, 6-35j, due to Unsatisfactory Participation, with an under other than honorable conditions discharge. There is no provision for any other reason to be entered under this regulation. The applicant's counsel requests the applicant's RE Code be changed. Army Regulation 601- 210 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. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1 defines reentry eligibility (RE) codes: 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. The applicant's counsel contends the applicant was being bullied and harassed due to the applicant's gender by the command and the command's answer was to push the applicant out. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment or bullying. The applicant's counsel contends the command counseled the applicant to quit coming to training. The applicant's AMHRR is void of evidence pertaining to the applicant's command counseling the applicant to quit coming to training. The applicant's counsel contends the command's reason for the discharge was deficient nor did the command offer the applicant the opportunity for rehabilitation. Army Regulation 135-178, paragraph 2-4, entitled counseling and rehabilitation, states the separation authority may waive the rehabilitative requirements when it is determined reassignment is not feasible due to commuting distance; or Soldier would create serious disciplinary problems, hazard to the military mission, or affect unit readiness; or rehabilitation would not produce a quality Soldier. The applicant's counsel contends the applicant was never offered or provided legal counsel. The AHMRR reflect the applicant waived the right to consult with counsel. The applicant's counsel contends the discharge no longer serves a purpose. The applicant's counsel states the applicant obtained a bachelor's degree and is working as a nurse. The applicant was accepted to a doctorate nursing program which is on hold. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. 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 applicant's counsel further requests removal of derogatory information from the applicant's record. This request does not fall within the purview of the ADRB. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. 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): N/A. 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? 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 a 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 Contention(s): (1) The applicant's counsel contends the applicant was being bullied and harassed due to the applicant's gender by the command. The Board determined that this contention was valid and voted to upgrade the characterization of service. (2) The applicant's counsel contends the command counseled the applicant to quit coming to training. The Board determined that this contention was valid and voted to grant relief in the form of an upgrade. (3) The applicant's counsel contends the command's reason for the discharge was deficient nor did the command offer the applicant the opportunity for rehabilitation. The Board determined that this contention was valid and voted to grant relief in the form of an upgrade. (4) The applicant's counsel contends the applicant was never offered or provided legal counsel. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted. (5) The applicant's counsel contends the discharge no longer serves a purpose. 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 1. c. The Board determined the discharge is inequitable based on the applicant's length and quality of service, the circumstances surrounding the discharge and post-service accomplishments. Therefore, 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 1. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's discharge was found inequitable. Thus, the prior characterization is no longer appropriate. This recommendation was forwarded to the NGB for approval. (2) The Board voted to change the reason for discharge Secretarial Authority, with a corresponding separation code to JFF This recommendation was forwarded to the NGB for approval. (3) The Board voted to change the RE code to RE-1. This recommendation was forwarded to the NGB for approval. 11. BOARD ACTION DIRECTED: a. Issue a New NGB Form 22a: Yes b. Change Characterization to: Honorable c. Change Reason: Secretarial Authority/ JFF d. Change RE Code to: RE-1 e. Change Authority to: NGR 600-200, Paragraph 6-8a 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 AR20230000484 1