1. Applicant's Name: a. Application Date: 1 February 2022 b. Date Received: 21 February 2023 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 through counsel, requests an upgrade to honorable. The applicant through counsel, seeks relief contending, in effect, the command made an error in discretion. The applicant does not want to be judged on the actions that were made when the applicant was a young adult. The applicant made one bad decision and have been working tirelessly to demonstrate that the applicant has modeled life based on values, discipline, courage, and strength. b. Board Type and Decision: In a telephonic personal appearance conducted on 2 October 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the family issues surrounding the AWOL, the applicant's age at the time of the misconduct, elapsed time since 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 Uncharacterized and changed to the separation authority to AR 635-200, paragraph 11-2d the narrative reason for separation to Entry-level performance and conduct with a corresponding separation code of JGA, and the reentry code to RE-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: 14 May 2008 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 21 February 2008, the applicant was charged with violating Article 86, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 22 January 2008 and remained AWOL at the time the charge sheet was initiated. On 17 April 2008, the applicant was charged with violating Article 86, UCMJ, for being AWOL from on or about 22 January 2008 until on or about 14 April 2008. (2) Legal Consultation Date: 17 April 2008 (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: 1 May 2008 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 September 2007 / 8 years b. Age at Enlistment / Education / GT Score: 19 / High School Graduate / 102 c. Highest Grade Achieved / MOS / Total Service: E-1 / None / 3 months, 17 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: None g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Two DA Forms 4187 (Personnel Action) shows the applicant's duty status changed as follows: From "Present for Duty (PDY)," to "AWOL," effective 22 January 2008; and From "AWOL" to "Dropped From Rolls (DFR)," effective 21 February 2008. Charge Sheet, 21 February 2008, shows the applicant was charged with violating Article 86, UCMJ, for being AWOL from on or about 22 January 2008 and remained AWOL at the time the charge sheet was initiated. Order 08-064-00011, 4 March 2008, released the applicant from the United States Army Reserve (USAR) and assigned the applicant to an active component unit at Fort Jackson, SC effective 21 February 2008, for processing under the provision of Army Regulation 630-10, AWOL, Desertion, and Administration of Personnel Involved in Civilian Court Proceedings. DA Form 616 (Report of Return of Absentee), shows the applicant surrendered to military authorities on 20 March 2008. Personnel Action form shows the applicant's duty status changed from "DFR" to "PDY," effective 14 April 2008. Charge Sheet, 17 April 2008, shows the applicant was charged with violating Article 86, UCMJ, for being AWOL from on or about 22 January 2008 until on or about 14 April 2008. Memorandum, Request for Discharge in Lieu of Trial by Court-Martial, 17 April 2008, shows the applicant voluntarily requested a discharge in lieu of trial by court-martial on 17 April 2008. Orders 130-0153, 9 May 2008, shows the applicant was reassigned to the U.S. Army Transition Point and discharged on 14 May 2008. i. Lost Time / Mode of Return: 2 months, 24 days (AWOL, 22 January 2008 - 14 April 2008) / Returned to Military Control j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Self-Authored Letter; four third party statements. 6. POST SERVICE ACCOMPLISHMENTS: Worked as a lead mechanic, lead personnel in the office. Degree in Construction Project Management at the General Society of Mechanics and Tradesmen of the City of New York. Became a senior project manager, and after 2 years, was offered partner in the business and became chief executive officer of S and L Storefronts and Glass. The applicant turned a small business into a multimillion-dollar company. 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), 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, paragraph 11-2d, 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 3-9 states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status. (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 10-8b 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. (8) 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. (9) Glossary defines for Army National Guard of the U.S. and USAR Soldiers, entry-level status begins upon enlistment in the ARNG or USAR. For Soldiers ordered to initial active-duty training (IADT) for one continuous period, it terminates 180 days after beginning training. For Soldiers ordered to IADT for the split or alternate training option, it terminates 90 days after beginning Phase II advanced individual training. (Soldiers completing Phase I basic training or basic combat training remain in entry-level status until 90 days after beginning Phase II.) e. 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. 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: (1) 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. (2) 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. (3) RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. On 5 September 2007, the applicant enlisted in the USAR. On 6 November 2007, the applicant was ordered to IADT at Fort Jackson, SC. On 22 January 2008, the commander of the basic training unit, Fort Jackson, SC reported the applicant AWOL. On 20 March 2008, the applicant surrendered to military authorities at Fort Hamilton, NY. On 17 April 2008, charges were preferred against the applicant for being AWOL from on or about 22 January 2008 until on or about 14 April 2008. The evidence in the applicant's AMHRR 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 through counsel contends, in effect, the command made an error in discretion. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant's AMHRR shows the applicant admitted guilt to the offense of being AWOL from on or about 22 January 2008 until on or about 14 April 2008. The applicant contends through counsel contends, in effect, the event which led to the discharge from the Army was one bad decision. AR 635-200, paragraph 3-5c states that there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The third-party statements provided with the application speak highly of the applicant and recognize the applicant's commitment to family and add that the applicant left the Army because the applicant's wife's father became terminally ill. 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): None 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 through counsel contends, in effect, the command made an error in discretion. The Board considered this contention and found no corroborating evidence to support the applicant's claim, however the Board voted to grant relief based on the circumstances surrounding the AWOL, the age of the applicant at the time and the time elapsed since the misconduct. (2) The applicant contends through counsel, in effect, the event which led to the discharge from the Army was one bad decision. The Board considered this contention and voted to grant relief based on the circumstances surrounding the AWOL, the age of the applicant at the time and the time elapsed since the misconduct. c. The Board determined the discharge is inequitable based on the family issues surrounding the AWOL, the applicant's age at the time of the misconduct, elapsed time since 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 Uncharacterized and changed to the separation authority to AR 635-200, paragraph 11-2d, the narrative reason for separation to Entry-Level Performance and Conduct with a corresponding separation code of JGA, and the reentry code to RE-3. d. Rationale for Decision: (1) The Board voted to upgrade the applicant's discharge to Uncharacterized based on the family issues surrounding the AWOL, the applicant's age at the time of the misconduct, elapsed time since the discharge and post service accomplishments. The Board found the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Entry-level Performance and Conduct under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JGA. (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: Uncharacterized c. Change Reason / SPD Code to: Entry-level Performance and Conduct / JGA d. Change RE Code to: RE-3 e. Change Authority to: AR 635-200 Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20230001994 1