1. Applicant’s Name: a. Application Date: 24 January 2023 b. Date Received: 8 February 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. b. The applicant seeks relief contending, in effect, when the applicant’s unit deployed the First Sergeant said the applicant was cleared to go home and the applicant received an honorable discharge. A year later the applicant was pulled over for being absent without leave (AWOL) from Camp Shelby, MS. When the applicant’s unit left, they collected all of the applicant’s gear. When the applicant arrived at Fort Sill, OK they seen the applicant’s honorable discharge on army.mil. A lawyer said that it could be cleared up in about 4 to 5 months, however, the applicant could not wait because the applicant had three kids that the applicant was raising. c. Board Type and Decision: In a telephonic personal appearance hearing conducted on 11 December 2023, and by a 4-1 vote, the Board denied the request upon finding the separation was both proper and equitable. 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: 28 November 2007 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 18 August 2007, the applicant was charged with violating Article?86, UCMJ, for being AWOL from on or about 23?March 2006 until on or about 5 August 2007 when the applicant was apprehended. (2) Legal Consultation Date: 16 August 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: 7 November 2007 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 October 2005 / NIF b. Age at Enlistment / Education / GT Score: 27 / GED / 102 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 7 years, 8 months, and 24 days (includes 104 days of excess leave (17 August - 28 November 2007) d. Prior Service / Characterizations: ARNG, 21 October 1998 - 27 September 2001 / GD ADT, 13 January 1999 - 6 May 1999 / HD (Concurrent Service) USARCG (AT), 28 September 2001 - 5 April 2007 / NA USARCG (REINF), 6 April 2007 - 29 October 2007 / NA e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) On 19 August 2005, the applicant was relieved from the USAR Control Group (AT) and ordered to active duty for partial mobilization for Operation Iraq Freedom. (2) On 26 October 2005, the applicant was scheduled to deploy to Iraq on or about 30?October 2005. (3) On 23 March 2006 the applicant was flagged for adverse action (AA). (4) On 1 April 2006, the applicant’s duty status changed from present for duty (PDY) to AWOL, effective 23?March 2006. (5) On 24 April 2006, the applicant was charged with violating Article?85, UCMJ, for being AWOL and remained absence in desertion. (6) On 6 May 2006, the applicant’s duty status changed from AWOL to dropped from rolls (DFR), effective 23 April 2006 and was considered a deserter. (7) On 6 April 2007, the applicant was assigned to the USAR Control Group (Reinforcement). (8) On 11 April 2007, Orders D-04-708278, honorably discharged the applicant from the USAR. (9) On 15 August 2007, the applicant was apprehended by civil authorities. (10) Memorandum, AWOL/Interview Report Chapter 10/Chapter 14, 16 August 2007, shows the applicant stated the reason for going AWOL was the applicant did not know the unit discharged the applicant and did not receive no other orders. (11) Memorandum, Request for Discharge in Lieu of Trial by Court-Martial, 16?August 2007, shows the applicant voluntarily requested a discharge in lieu of trial by court-martial. (12) On 18 August 2007, the applicant was charged with violating Article?86, UCMJ, for being AWOL from on or about 23 March 2006 until on or about 5 August 2007 when the applicant was apprehended by civil authorities. (13) On 22 August 2007, the applicant was assigned to the Personnel Control Facility Fort Sill, OK effective 5 August 2007. (14) On 24 August 2007, the applicant’s duty status changed from DFR to PDY/Returned to military control, effective 5 August 2007. (15) Memorandum, Request for Discharge in Lieu of Trial by Court-Martial, 4 October 2007, shows the company commander recommended approval of the applicant’s request for discharge with an under other than honorable conditions character of service. (16) On 2 November 2007, the request for discharge was found legally sufficient. (17) Memorandum, Request for Discharge in Lieu of Trial by Court-Martial, 7 November 2007, shows the separation authority approved the applicant’s request for discharge with an under other than honorable conditions character of service and an administrative reduction to E-1. (18) The applicant’s Enlisted Record Brief (ERB), 19 November 2007, the Assignment Eligibility Availability (AEA) code shows AEA code “A” for being dropped from the rolls as a deserter. (19) The applicant’s DD Form 214, shows the applicant was reduced to E-1 effective 7?November 2007. i. Lost Time / Mode of Return: 1 year, 4 months, and 14 days (AWOL, 23 March 2006 - 5?August 2007) j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; NGB Form 22; DD Form 214; DD Form 4187, promotion to E-4; Honorable Discharge Certificate. 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), 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) 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. (2) 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. (3) An 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. (4) 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. (5) 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.) (6) 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. (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 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. 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. a. The applicant requests an upgrade to honorable. The applicant’s AMHRR, the issues, and documents submitted with the application were carefully reviewed. b. 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. c. The applicant contends, in effect, when the applicant’s unit deployed the First Sergeant said the applicant was cleared to go home and the applicant received an honorable discharge. Orders 299-1942, Headquarters, U.S. Army Infantry Center, 26 October 2005, shows the applicant was scheduled to deploy in support of Operation Iraq Freedom on or about 30?October 2005. A charge sheet shows the applicant was charged with violating Article?86, UCMJ, for being AWOL from on or about 23 March 2006 until on or about 5 August 2007 when the applicant was apprehended by civil authorities. The applicant provided an honorable discharge certificate showing the applicant was honorably discharged from the USAR effective 11 April 2007. The AMHRR contains Orders D-04-708278, 11 April 2007, that shows the applicant was honorably discharged from the USAR effective 11 April 2007. d. 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): None b. The applicant presented the following additional contention(s): None c. Counsel / Witness(es) / Observer(s): None 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. Prior Decisions Cited: None c. Response to Contention: The applicant contends, in effect, when the applicant’s unit deployed the First Sergeant said the applicant was cleared to go home and the applicant received an honorable discharge. The Board considered this contention, however without medical evidence, the Board was unable to determine if the applicant had any medical mitigating reason that would outweigh the applicant’s discharge. d. The Board determined that the discharge is, at this time, proper and equitable, considering the current evidence of record. 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 that the discharge was improper or inequitable. e. Rationale for Decision: (1) The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, record of service, the frequency and nature of misconduct, and the reason for separation. The Board, in a 4-1 vote, found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official that the applicant's does not have BH condition that mitigates the applicant's AWOL. Based on a preponderance of evidence, the Board determined that the reason for the applicant's separation and the character of service the applicant received upon separation were proper and equitable. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, and 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: No b. Change Characterization to: No Change 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 AR20230006145 1