1. Applicant's Name: a. Application Date: 12 March 2023 b. Date Received: 23 March 2023 c. Counsel: None 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 an upgrade to honorable, and changes to the SPD and RE codes, and narrative reason. b. The applicant seeks relief contending, in effect, the applicant served as an infantryman and deployed to Iraq and has been diagnosed with PTSD and Survivors Syndrome before being discharged and has a current diagnosis as well. The applicant has applied for benefits and a discharge upgrade with the VA three times. The applicant initially left Iraq for annual leave because the applicant's wife was cheating on the applicant. Instead of going home, the applicant chose to visit the applicant's mother, finding the applicant's mother in a mental facility for diagnosed depression and suicidal attempts. The applicant's mother had major severe depression and the applicant's deployment caused the applicant's mother to spiral. The applicant's annual leave was changed to emergency leave. The applicant's mother's condition tore the applicant to pieces and the applicant could not leave the family with no help. The applicant decided to stay and get a job to pay the bills and keep food on the table. a. Board Type and Decision: In a telephonic personal appearance hearing conducted on 6 November 2023, and by a 5-0 vote, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. The board voted not to change the RE code. 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 June 2009 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 5 May 2009, the applicant was charged with violating Article 86, UCMJ, for being absent without leave (AWOL) from on or about 10 June 2008 until on or about 6 April 2009 when the applicant was apprehended. (2) Legal Consultation Date: 18 May 2009 (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 chain of command recommended an Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 28 May 2009 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 February 2008 / 6 years b. Age at Enlistment / Education / GT Score: 21 / GED / 116 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 2 years, 11 months, and 8 days d. Prior Service / Characterizations: RA, 30 August 2005 - 1 February 2008/ HD e. Overseas Service / Combat Service: SWA / Iraq (NIF) f. Awards and Decorations: ICM-CS g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) Temporary Change of Station Orders 207-161, 25 July 2008, shows the applicant was scheduled to deploy to Iraq on or about 13 August 2007. (2) Personnel Action form shows the applicant's duty status changed from emergency leave to AWOL, effective 10 June 2008. (3) Charge Sheet, 5 May 2009, shows the applicant was charged with violating Article 86, UCMJ, for being AWOL from on or about 10 June 2008 until on or about 6 April 2009 when the applicant was apprehended. (4) Personnel Action form shows the applicant's duty status changed from AWOL to dropped from rolls (DFR), effective 10 July 2008. (5) DA Form 616 (Report of Return of Absentee) shows the applicant was apprehended by civil authorities on 6 April 2009. (6) Personnel Action form shows the applicant's duty status changed from DFR to present for duty (PDY), effective 6 April 2009. (7) Memorandum, discharge in lieu of trial by courts-martial, 18 May 2009, shows the applicant voluntarily requested a discharge in lieu of trial by court-martial. (8) Memorandum, request for discharge in lieu of trial by court martial, (Applicant), 28 May 2009, shows the chain of command recommended approval of the request and the Acting Staff Judge Advocate recommended the separation authority to approve the request. (9) Memorandum, request for discharge in lieu of trial by court martial, (Applicant), 28 May 2009, shows the separation authority approved the applicant's request for a chapter 10 with an under other than honorable conditions character of service. (10) The applicant's Enlisted Record Brief (ERB), 2 June 2009, shows the applicant was flagged for adverse action (AA), effective 10 June 2008. The Assignment Eligibility Availability (AEA) code shows AEA code "N" for continental United States (CONUS)-based Soldiers who have received a deployment indicator (transaction) denoting that they are currently deployed outside-CONUS. i. Lost Time / Mode of Return: 9 months and 28 days (AWOL, 328 days, 10 June 2008-6 April 2009) / Apprehended by Civil Authorities. j. Behavioral Health Condition(s): (1) Applicant provided: (a) Psychiatric evaluation, Headquarters, U.S. Army Medical Department Activity, 18 May 2009, states the applicant's childhood played a significant role in the applicant's "decision" to return home versus to return to duty as well as contributed to the applicant's present diagnosis of PTSD. The applicant was a parental child and the applicant's knee-jerk reaction has been to rescue mother. As a driver while the applicant was deployed, the applicant's vehicle was hit by a roadside improvised explosion device. In addition, the applicant's battle buddy was hit in the neck by shrapnel and bled out. Since the battle buddy had requested the applicant to switch places, the applicant feels responsible. The applicant was diagnosed with "Chronic Post- Traumatic Stress Disorder, Severe." (b) Better Mood Clinic letter shows the applicant was diagnosed with PTSD (includes PTSD for children 6 years and younger), and unspecified attention-deficit/hyperactivity disorder effective 27 February 2023. (2) AMHRR Listed: The above psychiatric evaluation letter, 18 May 2009, is also in the applicant's AMHRR. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; Congressional Release and Authorization Form; ERB; two self-authored statements; mental health evaluation; and PTSD diagnosis. 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 PTSD, 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 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) Chapter 15 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. e. Army Regulation 630-10 (AWOL, Desertion, and Administration of Personnel Involved in Civilian Court Proceedings) provides policies and procedures for reporting unauthorized absentees and deserters, the administering of AWOL personnel and deserters, returning absentees and deserters to military control and the surrendering of military personnel to civilian law enforcement authorities. (1) Paragraph 4-4c, states classification of an absence is dependent upon such factors as the following: * Orders and instructions, written and oral, the Soldier received before and during the absence * Age, military experience, and general intelligence of the soldier * Number and type of contact the soldier had with the military while absent * Complete or incomplete results of a court-martial decision (2) Paragraph 4-4d, states an absence immediately following authorized leave is classified as AWOL. Should the absence subsequently be reclassified, the Soldiers leave is corrected to reflect the reclassified absence, except if the absence is caused by the following: * Mental incapacity * Detention by civilian authorities * Early departure of a mobile unit due to operational commitments f. Army Regulation 635-5-1 (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. g. 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. a. The applicant requests an upgrade to honorable, and changes the SPD and RE codes, and narrative reason. The applicant's AMHRR, the issues, and documents submitted with the application were carefully reviewed. b. The applicant was charged with violating Article 86, UCMJ, for being AWOL from 10 June 2008 until 6 April 2009 when the applicant was apprehended. 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. c. The applicant requests the narrative reason for the discharge to be changed. 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 Processing and 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 listed in tables 2-2 or 2- 3 of AR 635-5-1, SPD Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. d. The applicant requests the SPD code to be changed. 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. The 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." e. The applicant requests a RE code change. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, the applicant was appropriately assigned an RE code of "4." An RE code of "4" cannot be waived, and the applicant is no longer eligible for reenlistment. f. The applicant contends, in effect, the applicant was diagnosed with PTSD and Survivors Syndrome before being discharged and has a current diagnosis as well. Psychiatric evaluation, Headquarters, U.S. Army Medical Department Activity, 18 May 2009, states as a driver while the applicant was deployed, the applicant's vehicle was hit by a roadside improvised explosion device. In addition, the applicant's battle buddy was hit in the neck by shrapnel and bled out. Since the battle buddy had requested the applicant to switch places, the applicant feels responsible. The applicant was diagnosed with "Chronic Post-Traumatic Stress Disorder, Severe." Better Mood Clinic letter shows the applicant was diagnosed with PTSD (includes PTSD for children 6 years and younger), and unspecified attention-deficit/hyperactivity disorder effective 27 February 2023. The applicant's AMHRR is void of a mental status evaluation. Per AR 635-200, a medical and mental examination was not required for a voluntary request in lieu of trial by court-martial; however, they could have been requested by the applicant. The applicant's AMHRR is void of evidence indicating whether they requested either examination. g. The applicant contends, in effect, the applicant was AWOL because the applicant's mother was in a mental facility for diagnosed depression and suicidal attempts. The applicant's mother had major severe depression and the applicant's deployment caused the applicant's mother to spiral. Psychiatric evaluation, Headquarters, U.S. Army Medical Department Activity, 18 May 2009, states the applicant's childhood played a significant role in the applicant's "decision," to return home versus to return to duty as well as contributed to the applicant's present diagnosis of PTSD. The applicant was a parental child and the applicant's knee-jerk reaction has been to rescue mother. The applicant's AMHRR contains two behavioral health services letters, 2 July 2008, and 13 May 2009, showing the applicant's mother was diagnosed with major depressive disorder and anxiety disorder NOS. h. The applicant's AMHRR has administrative irregularities: (1) Analyst notes block 11 (Primary Specialty) of the applicant's DD Form 214, shows the applicant's military occupational specialty (MOS) as "None." The applicant's ERB shows the applicant's primary MOS as 11B. AR 635-5, paragraph 2-4h (11), Primary Specialty, states from the ERB, enter the titles of all MOS served for at least 1 year and include for each MOS the number of years and months served. For time determination, 16 days or more count as a month. Do not count basic training and advanced individual training. (2) Analyst notes block 12f (Foreign Service) and block 18 (Remarks) of the applicant's DD Form 214, shows no record of foreign service. The applicant's AMHRR contains Temporary Change of Station Orders 207-161, 25 July 2008, showing the applicant was to deploy to Iraq on or about 13 August 2007 for a period not to exceed 455 days. DA Form 616 (Report of Return of Absentee), shows the organization and installation from which absent was A Company, 1st Squadron, 2nd Stryker Cavalry Regiment, Camp Taji, Iraq. Block 13 (Decorations, Metals, Badges, Citations and Campaign Ribbons Awarded or Authorized), shows the applicant was awarded the Iraq Campaign Medal with campaign star. i. Published Department of Defense guidance indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 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): No additional documents were submitted. b. The applicant presented the following additional contention(s): No additional contentions were presented. c. Counsel / Witness(es) / Observer(s): Applicant only appearance 10. BOARD DISCUSSION AND DETERMINATION: b. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses: Adjustment Disorder, PTSD, and ADHD. (2) Did the condition exist or experience occur during military service? Yes. The applicant's medical record reflects in-service Adjustment Disorder and PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that given the nexus between trauma and avoidance, AWOL is mitigated. (4) Does the condition or experience outweigh the discharge? Yes. Based on liberally considering all the evidence before the Board, the ADRB determined that the condition or experience outweighed the basis of separation. c. Prior Decisions Cited: None d. Response to Contention(s): (1) The applicant contends, in effect, the applicant was diagnosed with PTSD and Survivors Syndrome before being discharged and has a current diagnosis as well. The Board determined that this contention was valid and voted to upgrade the characterization of service due to PTSD mitigating the applicant's AWOL charges. (2) The applicant contends, in effect, the applicant was AWOL because the applicant's mother was in a mental facility for diagnosed depression and suicidal attempts. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD fully outweighing the applicant's AWOL. e. The Board determined the discharge was inequitable and voted to grant relief in the form of an upgrade of the characterization of service to Honorable, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. The board voted not to change the RE code. f. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service based on the BH mitigation of the misconduct, the applicant's record of service and family issues surrounding the misconduct. The Board's Medical Advisor applied liberal consideration and opined that given the nexus between trauma and avoidance, AWOL is mitigated. Based on the above information, the Board concurred the current discharge warranted an upgrade. (2) The Board voted to grant relief in the form of an upgrade to the characterization of service to Honorable with accompanying SPD code JKN. (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: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change e. Change Authority to: AR 635-200, paragraph 14-12a 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 AR20230005462 1