IN THE CASE OF: BOARD DATE: 26 October 2020 DOCKET NUMBER: AR20190006246 APPLICANT REQUESTS: through counsel, his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge, and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show: * his separation code as a more favorable code, consistent with an honorable discharge, instead of the currently shown code "KFS" * his reentry (RE) code as "1" instead of "3" * his narrative reason for separation as "For the Convenience of the Government" instead of "In Lieu of Court Martial" APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 5 March 2019 * counsel’s 13-page legal brief, dated 24 February 2019 * applicant’s personal affidavit, undated * DD Form 214, for the period ending 19 July 2001 * letters of support from Riverside Psychiatric Center, dated 14 December and 19 December 2016 * Army Discharge Review Board (ADRB) Case Report and Directive for Docket Number AR20160013259, boarded on 25 September 2017 * letter from the Army Review Boards Agency (ARBA) Office of Congressional Liaison and Inquires (CLI), dated 6 November 2017 * letter to Congressman, dated 4 December 2017 * letter from the University of Maine at Augusta (UMA), dated 5 May 2018 * letter to the ADRB, dated 5 June 2018 * letter from the ARBA Office of CLI, dated 16 July 2018 * counsel’s legal intake form, dated 22 July 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. Counsel states, in effect, that on behalf of [the applicant], he submits the following petition to correct the applicant's military records: a. This is a case involving a U.S. Army Soldier who was unjustly and erroneously separated with a General, Other Than Honorable ("OTH") [sic] Discharge in Lieu of Trial by Court-Martial. The Applicant seeks to remedy this injustice through the ABCMR. Applicant became aware of the existence of the error upon consultation with an attorney in 2018, and then became apprised of the legal errors of his discharge. Applicant has exhausted all administrative remedies under existing law and regulation and requests relief. The applicant wishes this petition to be reviewed in the interest of EQUITY, FAIRNESS, and JUSTICE, and that the requested relief be granted. b. Counsel is a military law attorney and represents the applicant, who is basing his appeal on three errors: (1) the underlying basis of his separation was procedurally defective at the time of the discharge; (2) the adverse action, to include the administrative discharge, was unfair at the time; and (3) the OTH Discharge, is inequitable now. On behalf of the applicant, he respectfully requests that the Board upgrade the applicant's discharge to honorable and change the reason for the discharge to "For the Convenience of the Government." [The applicant’s OTH Discharge is inequitable and has served its purpose.] c. The applicant has exhausted means to appeal according to Army Regulation 15-185 (ABCMR). He applied to the ADRB on 12 July 2016 but was denied. He has not previously applied to the ABCMR and is submitting his application outside the 15 year statute of limitation. Because a preponderance the evidence shows an error or injustice exists, he requests his appeal be granted; that any negative documents be set aside in their entirety; and that he be issued a corrected DD Form 215. d. Counsel cites governing regulations, including Title 10, USC, Section 1553 and Title 32, Code of Federal Regulations (CFR), Section 581.3; previous Board cases; and guidance from former Secretary of Defense Hagel, known as the Hagel Memorandum. e. Counsel states in effect, in his "Background" section, the following: (1) The applicant always wanted to be a Soldier and wanted to make his service a career. He wanted to serve his country in the best military in the world. He had a teacher who was an officer in the Army, someone he looked up to as a mentor. In his teens, he worked for a veteran who was an infantryman in the Marines and he enjoyed hearing his recollections about his time in the service. During the summer after his junior year of high school, he took the GED, scored 121 on it, and then dropped out of high school. (2) At the age of 18, he entered the military on a delayed entry program and was inducted into the Army [sic] on 3 November 1999, as an infantry gunner. He was proud to be an infantryman and to have the possibility of fighting on the frontlines. He attended boot camp and AIT at Fort Benning, and got Dragon and Javelin qualified. He was then stationed in Hawaii at Schofield Barracks. While stationed in Hawaii, he was deployed to Japan for North Wind Training for one month; and Fort Polk, Louisiana, for Joint Training (JROTC) for one month. He started having trouble getting up in the morning as he was staying up late at night. He started to get depressed; drank a lot; used drugs; got into trouble; and had trouble with substance abuse and addiction. (3) On 3 July 2000, while swimming and running for PT, he started hyperventilating, vomiting, and coughing and was referred to the Schofield Barracks Division Mental Health Service for treatment. He was then referred for drug and alcohol counseling, which he attended. On or around 28 August 2000, he popped positive for marijuana on a random urinary analysis (UA) test. He was then given a Field Grade Article 15, with reduction in rank, forfeiture of pay, and restriction to the Schofield Barracks for 45 days. On or around 27 September 2000, an investigation of his activities was initiated by the U.S. Army Criminal Investigation Command (CID). On or around 28 September 2000, he was found wrongfully possessing drug paraphernalia. (4) He tested positive for marijuana and cocaine on a UA on 8 February 2001. On or around 7 March 2001, another investigation was initiated by CID. From about 8 March 2001 until 4 April 2001, he was considered AWOL. On 18 June 2001, he requested a Discharge in Lieu of Trial by Court-Martial. He did so while being coerced and unable to understand the nature of the proceedings. He was administratively separated on 19 July 2001 with a General, Other Than Honorable, Discharge [sic]. He received the Army Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar, Expert Marksmanship Qualification Badge with Machine Gun Bar, and the Expert Marksmanship Qualification Badge with Grenade Bar. (5) After his involuntary discharge, he worked full-time until 2002. When he was arrested for LUI but all charges were dropped. He then lived with his uncle for a few years. His mental health started to decline and things started to go downhill for him. He felt paranoid, started smoking marijuana, drinking a lot, and occasionally using cocaine. (6) In 2005, he moved home to live with his parents. He continually self- medicated by drinking and smoking marijuana to calm his paranoia and psychosis. He was psychiatrically hospitalized in 2005 and 2006 at Acadia Hospital in Bangor, Maine, and again at Riverview Psychiatric Center in Augusta, Maine, from February to April 2006. In June 2006, he had grandiose and paranoid delusions (among other psychotic symptoms) and murdered his mother. He was found Not Criminally Responsible for the crime by reason of mental disease/defect on 27 March 2007, and has been a ward of the State of Maine since that time with his father appointed legal guardian. (7) In 2007, he was psychiatrically hospitalized at Riverview Psychiatric Center. He worked multiple jobs while there cooking food for staff. He didn't know what he had really done until a couple of years later, after he had steadily been on medication. He realized that he thought his mother was an Al-Qaeda operative and he had to take her out. Upon realization of this, his world collapsed on him. He sought to repair his life after that, and started taking online classes at Colorado Tech University; and going to church a little bit. (8) He has since completed self-development groups, life after hospital groups, co-occurring groups both for substance abuse and mental illness group therapy. In 2010, he graduated with an Associate's Degree. He then was accepted at University of Maine to pursue a Bachelor's Degree in Justice Studies and obtain his paralegal certificate. He graduated in May of 2018 and hopes to find employment as a paralegal at a law firm. (9) Since his OTH discharge, he continues to receive treatment and take medication for his mental health condition (schizophrenia). He hasn't had a drink in 10 years, other than a relapse 4 years ago, which he recovered quickly from. He has successfully received his paralegal certificate. He will next apply to, and hopes to be accepted into, Law school this year or next. He wants to become an attorney so he can assist people with mental illness and do something meaningful with his life. He served honorably on Active Duty. The OTH Discharge no longer serves a purpose. He continues to be a productive member of society. f. Counsel states, in his "Analysis and Argument," the following: (1) There is a procedural defect in this case. The request for administrative separation can be both command-initiated and initiated by the service-member. In this case, there was a hasty command-initiated request for separation. [The applicant] was experiencing difficulties mentally and emotionally and was clearly self-medicating but the command did not find out if there was any way that they could have helped him. During a Command-initiated discharge request, under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, per reference 10-4 (b), consideration should be given to the Solder's potential for rehabilitation, and his/her entire record should be reviewed before taking action. The Commanding Officer must provide the member reasonable time to overcome deficiencies. (2) In this case there was a rush to judgment that there was a problem that could not be fixed. The command should have evaluated the applicant as to whether he had a long term problem or whether there was an immediate fix. Per the Manual of Rules for Courts-Martial (R.C.M.), the applicant should have been subjected to a Rule 706 Inquiry to evaluate his mental health status. (3) [The applicant] should not have been separated under the Uniform Code of Military Justice (UCMJ). In accordance with (IAW) Army Regulation 635-200, Chapter 10, a Soldier submitting a request for discharge in lieu of trial by court-martial, must believe that he is guilty of an offense which could result in his discharge from military service. Although the DD Form 458 (Charge Sheet) clearly has charges that would allow for his separation, there were not actual charges that he had the Mens Rea (Criminal Intent) required for his separation. The Trial Defense Counsel (TDS) should have known that [the applicant] would not be able to submit a Chapter 10 because he was not in fact guilty. (4) [The applicant] was assigned detailed TDS Counsel at Fort Carson. The U.S. Army is required to provide competent legal counsel. The TDS Counsel did not have proper time for the case. He also did not thoroughly investigate the charges and whether the proper course of action was a Chapter 10 separation. [The applicant] had never been involved in a criminal investigation and relied on his detailed counsel's advice. The TDS Counsel was apprised of the behavioral health issues facing [the applicant] at the time and did not use that as part of the request for a Chapter 10. These facts would have helped the Convening Authority find that an OTH discharge was inappropriate. The request should have included a request for a General, Under Honorable Conditions Discharge or an Honorable discharge. The submission of the Chapter 10 without these facts was ineffective assistance of counsel (IAC). (5) The operation of a discharge in lieu of trial by court-martial is found within Army Regulation 635-200, Chapter 10. A Soldier cannot agree to be separated in lieu of court-martial without being confident that he is guilty of an offense under the UCMJ that allows for discharge. [The applicant’s] actions that related to the court-martial were mistakes but not criminal mistakes. He did not understand the effects of his Chapter 10 request at the time of his submission of the paperwork, was void by regulation. [The applicant] was referred for mental health evaluation to the Schofield Behavioral Clinic, but it was not performed by a board as it should have been per R.C.M. Rule 706(c)(l). The military judge never ordered a mental examination per R.C.M. Rule 706(b)(2). (6) Although the Command was authorized to administratively separate Applicant, the fundamental reason for the discharge was substantially deficient. There was no fully determined reason to initiate his elimination. The instruction also allows for the service member to be able to "fix" the problem. Applicant was not allowed these opportunities. The service-member was never offered or provided with rehabilitation. The Command in this case did not have the proper authority to administratively separate applicant. (7) Finally, the General, Other Than Honorable, Discharge does not serve a further purpose. The events that took place are no longer relevant to applicant's life and he has lived since in as responsible a manner as he could. There is no valid equitable purpose in leaving the discharge in place. This appeal should consider the entirety of the applicant's military career, his medical records, and personal affidavit. Applicant has sought to fix his life since being involuntarily separated. He has received letters of recommendation and statements from mental health providers, friends, and service- members attesting positively to his progress and good character. (8) Counsel concludes his brief with the following; the applicant requests that this derogatory information will be removed from his record. He asks that this appeal through the ABCMR be given the utmost scrutiny. The success of the appeal and future actions by the U.S. Army and the ABCMR will have a significant impact on his ability to receive proper benefits and recognition. He will continue to fight this derogatory information up through the Secretary of the Army. 3. The applicant submitted a personal affidavit, which was reviewed and included many of the same facts put forth by counsel. 4. The applicant enlisted in the Regular Army on 3 November 1999. 5. The applicant’s service record contains the following: a. DD Form 2624 (Specimen Custody Document – Drug Testing), showing the applicant submitted a urine sample on 31 July 2000, as part of a random unit urinalysis inspection. This sample tested positive for cocaine, as documented in positive drug testing results dated 7 August 2000. b. DA Form 4856 (Developmental Counselling Form), showing the applicant was counseled on 24 August 2000, for his positive urinalysis results for cocaine. He was further informed; he would be command referred to the Alcohol and Drug Prevention Control Program (ADAPCP); would receive a Field Grade Article 15; and if this type of behavior continued, he could be separated from the service. c. DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), shows the applicant accepted nonjudicial punishment (NJP) on 11 September 2000 under the provisions of Article 15 of the UCMJ, for his wrongfully using cocaine, between on or about 31 June 2000 and 24 July 2000. His punishment included a reduction to the grade of private E-1. d. DD Form 2624, shows he submitted another urine sample on 28 August 2000, as part of a random drug test. This sample tested positive for marijuana/THC, as documented in positive drug testing results dated 7 September 2000. e. DD Form 2624, shows he submitted another urine sample on 8 February 2001, as part of a random drug test. This sample tested positive for cocaine and marijuana/THC, as documented in positive drug testing results dated 15 February 2001. 6. The applicant's service records shows a CID investigation was started on the applicant on or about 7 March 2001. 7. Court-martial charges were preferred against the applicant on 30 May 2001, for violations of the Uniform Code of Military Justice (UCMJ). The relevant Charge Sheet shows he was charged with: * one specification of absenting himself from his unit, without authority, from on or about 8 March 2001 through on or about 4 April 2001 * one specification of wrongfully possessing drug paraphernalia, on or about 28 September 2000 * two specifications of wrongfully using a controlled substance, marijuana, between on or about 28 July 2000 and 28 August 2000; and between 8 January 2001 and 8 February 2001 * one specification of wrongfully using a controlled substance, cocaine, between on or about 8 January 2001 and 8 February 2001 8. The applicant consulted with legal counsel on 18 June 2001. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a bad conduct or dishonorable discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily, on his own free will, with any coercion, requested discharge under the provision of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He acknowledged though counsel advised him of his rights, that this was his decision. c. He was further advised that there is no automatic upgrading nor review by any Government agency of a less than honorable discharge and that he must apply to the ADRB or the ABCMR if he wished for a review of his discharge. He realized that the act of consideration by either board does not imply that his discharge would be upgraded. d. He was advised he could submit any statements he desired in his own behalf. He elected not to submit a statement. 9. The applicant's commander and battalion commander recommended approval of his request for discharge, under the provision of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and recommended that he be issued an UOTHC discharge. 10. The applicant's brigade commander also recommended approval of his request for discharge, under the provision of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and recommended that he be issued an UOTHC discharge. He cited, as the basis for his recommendation, the applicant's drug use and 29 days of AWOL. 11. The Headquarters, 25th Infantry Division (Light) and U.S Army, Hawaii, Staff Judge Advocate, reviewed the applicant's request for discharge. He found the evidence in each charge was sufficient and recommended the applicant be sent to a Special Court- Martial empowered to adjudge a Bad Conduct Discharge, and a referral to the court- martial convening authority. 12. The separation authority approved the applicant's request for discharge on 19 June 2001, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed the applicant's reduction to the lowest enlisted grade and the issuance of a DD Form 794A (UOTHC Discharge Certificate). 13. The applicant was discharged on 19 July 2001, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. The DD Form 214 he was issued shows his service was characterized as UOTHC and he was credited with completing one year, seven months, and 20 days of net active service. 14. The applicant was charged due to the commission of several offenses punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 15. The applicant applied to the ADRB for an upgrade of his UOTHC discharge; however, the Board denied his request on 25 September 2017. 16. The applicant’s records provide documentation showing the following to address counsel’s contentions: a. Counsel states there was a rush to judgement but points out the applicant was referred for and attended drug and alcohol counseling. Further, he was the subject of two CID investigations; found possessing drug paraphernalia; went AWOL; and tested positive for marijuana twice and cocaine once. b. He was charged with several offenses punishable under the UCMJ with a punitive discharge. He consulted with counsel and without any coercion, he voluntarily requested separation under the provisions of Army Regulation 635-200, Chapter 10, in lieu of facing a trial by court-martial. c. Counsel inaccurately states the applicant was inducted when, in fact, he voluntarily enlisted. Counsel inaccurately states the applicant received a general, under honorable conditions discharge when, in fact, he received a UOTHC discharge. 17. Counsel provides the following for consideration: * the applicant's personal affidavit, including many of the same facts as legal brief * two Riverside Psychiatric Center, letters, attesting he was diagnosed with schizophrenia in his 20s, post military service; his suicidal ideations since age 10; the progression of his illness; and detailing his substance abuse treatment * ADRB Docket Number AR20160013259, boarded 25 September 2017 * two CLI, response letters, showing his case was received and being processed; and if he felt the decision in his case was unclear or not responsive to the issues raised you may request reconsideration; or apply to the ABCMR * a letter to his congressman requesting assistance in his case * UMA Reference letter, attesting to he demonstrated excellent performance in his academic coursework; his project was developing; he was a natural leader at the center; he would hire him to work as a veteran mentor; he had continually made the dean lists and graduating with a Bachelors of Science in Juvenile Studies * a letter to the ADRB, notifying them of his recent graduation * counsel’s legal intake sheet 18. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 19. Based on the applicant's contention the Army Review Board Agency medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: 1. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents. There were no records in Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), or in Health Artifacts Image Management Solutions (HAIMS). Search in Joint Legacy Viewer (JLV) revealed that the applicant is not registered at a VA site and there were no available mental health records. 2. The applicant was discharged in lieu of trial by court-martial with characterization of service as Under Other Than Honorable Conditions. The applicant is requesting a discharge upgrade to Honorable contending that he was suffering from a mental health condition. There were no in-service medical records available for review to corroborate a mental health condition during service. The 25 October 1999 Report of Medical Exam (for enlistment) showed a normal psychiatric exam and no mention of a psychiatric diagnosis or history of such. In the undated Personal Affidavit of Military Member, the applicant again denied having a mental health diagnosis prior to entering the military. 3. In contrast, the 14 December 2016 communication from Department of Health and Human Services Riverview Psychiatric Center in Augusta, Maine indicated that the applicant’s mental health history began in his childhood: “He suffered significant emotional turmoil throughout his teenage years including suicidal ideation on a number of occasions with attempts beginning as early as age 10”. The applicant was eventually diagnosed with schizophrenia when he was “well into his 20’s”. His mental health team further detailed that “at age 24 and in the context of grandiose and paranoid delusions …he murdered his mother” in June 2006. Establishing the nexus between the applicant’s alleged prodromal indices (illicit drugs used to self-medicate, poor performance, disordered thinking, emotional dysregulation), and schizophrenia diagnosed within the proximate few years would not be difficult to support; but a diagnosis 4 to 5 years later makes the connection more tenuous and less probable. 4. Again, there were no behavioral health treatment records available for this review from the applicant’s time in service, although the counsel’s 24Feb2019 legal brief indicated the applicant was seen on 03Jul2000 and was referred for substance abuse and alcohol counseling. In addition, the previous Army Discharge Review Board Case Report acknowledged “A careful review of the applicant's documentary evidence indicates the applicant's behavioral health issues symptoms existed [in service]…” And finally, in his previous application (DD Form 293) dated 20160712, the applicant stated that during service, he was hospitalized at Tripler and was diagnosed with bipolar disorder by a psychologist. 5. After reviewing all of the available evidence, in this reviewer’s opinion, the records that are available for this review are insufficient to support that the applicant had a PTSD or PTSD related condition during his time in service which would serve to mitigate the offences that led to his discharge from service. In addition, more evidence is needed to ascertain whether the applicant had a mental health condition prior to service, as Liberal Consideration guidance is not applicable to cases involving preexisting conditions which are determined not to have been incurred or aggravated while in military service. In short, in the reviewer’s opinion, there are 3 issues with this case: The in service behavioral health condition is not PTSD or PTSD related; the lag between discharge and the schizophrenia diagnosis (which under some circumstances may be mitigating) is unusually long, and finally evidence was presented that the applicant may have had a preexisting mental health condition seemingly not aggravated by military service. BOARD DISCUSSION: 1. The board carefully considered the applicant’s request to upgrade his discharge, and amend his separation code, reentry code, and narrative reason for separation. After review of the application and all evidence, including the Army Review Board Agency Medical Review, the Board found insufficient evidence to grant relief. The Board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity. 2. The Board agreed with the Medical Review that the available record does not reasonably support a behavioral health condition at the time of his discharge. There is no documentation to suggest he did not meet retention standards at the time of his discharge. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance, there is no documented behavioral health conditions to consider with respect to mitigation of the misconduct that led to his discharge. Furthermore, the schizophrenia diagnosis (which under some circumstances may be mitigating) occurred post service and evidence was presented that the applicant may have had a preexisting mental health condition seemingly not aggravated by military service. 3. The Board found limited evidence of post-service honorable conduct or other possible grounds for clemency that might have mitigated the discharge characterization. Therefore, the Board agreed that the applicant’s discharge, separation code, reentry code, and narrative reason for separation are appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 provides a list of RE codes. a. RE code "1" applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army. They are qualified for enlistment if all other criteria are met. b. RE code "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. They are ineligible for enlistment unless a waiver is granted. A waiting period of 2 years from separation is required before a waiver may be submitted through a local recruiting office. 3. Army Regulation 635-5-1 (Separation Program Designator (SPD Codes) provides that Soldiers separated under Army Regulation 635-200, Chapter 10, receive the separation code "KFS." The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and RC Soldiers. This cross reference table shows the SPD code and a corresponding RE code. The separation code "KFS" has a corresponding RE code of "3." 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member'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. b. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge was normally considered appropriate. 5. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014, to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 6. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration 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, traumatic brain injury (TBI), sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 7. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190006246 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190006246 13 ABCMR Record of Proceedings (cont) AR20190006246 12