IN THE CASE OF: BOARD DATE: 28 June 2023 DOCKET NUMBER: AR20220011946 APPLICANT REQUESTS: * upgrade of his under other than honorable conditions (UOTHC) discharge to an under honorable conditions (General) discharge * upgrade of his Reentry Eligibility (RE) code from "4" to "2" * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge from the Armed Forces of the U.S.) * Certificate of Completion FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20170002205 on 4 June 2020. 2. The applicant states, in his opinion, his case at Fort Bragg, NC, has not been completed and there is no outcome to determine his characterization of service. As a new argument, he further states he was being treated for a diagnosis of schizoaffective disorder before he was discharged. His symptoms had worsened by June 2013, when he was denied early separation prior to his expiration term of service (ETS) date to attend the University. His service characterization has also caused an unnecessary hardship when employers look at his DD Form 214 (Certificate of Release or Discharge from Active Duty). He has readjusted himself and become a better citizen. 3. On 6 June 2007, the applicant enlisted in the Regular Army for a period of 4 years and 19 weeks. Upon completion of initial entry training, he was awarded military occupational specialty (MOS) 11B (Infantryman) and assigned to a unit at Fort Bragg, NC. He served in: * Afghanistan from 3 December 2007 until 15 March 2008 * Iraq from 5 June 2008 until 8 August 2008 * Iraq from 1 December 2008 until 15 November 2009 4. In 2010, he completed training and was awarded MOS 15W (Unmanned Aerial Vehicle Operator) and assigned to a different unit at Fort Bragg. He was promoted to the rank/grade of sergeant (SGT)/E-5 on 1 December 2010. He served in Afghanistan from 6 February 2012 until 28 September 2012. 5. On 8 April 2013, the applicant was counseled by his company first sergeant (1SG) regarding him creating and using falsified ETS orders. The 1SG further advised him that an administrative flag was imposed against him, effective 21 March 2013, and that he would be recommended for non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ). 6. On 23 April 2013, the applicant accepted field grade NJP under Article 15 of the UCMJ for with intent to deceive, make an official record, to wit: ETS orders, on or about 7 March 2013, which were totally false and known to him to be false. His punishment consisted of reduction to specialist (SPC)/E-4; forfeiture of $1,152.00 pay per month for two months; extra duty for 45 days; and restriction for 45 days. 7. A Commander's Inquiry revealed the applicant forged a Graduation Certificate and Permanent Orders showing he had successfully completed Ranger School training and had been awarded the Ranger Tab, when in fact, he had never attended the course at all. He also entered this false information into the Army Training Requirements and Resource System, his Enlisted Record Brief, and his Official Military Personnel File. Based upon these findings, the investing officer recommended immediate removal of the orders, certificate, and database entries from the applicant's records. He further recommended field grade NJP action be initiated against the applicant with punishment of 30 days restriction, 30 days extra duty, and reduction in rank/grade from SPC/E-4 to private (PV2)/E-2. 8. A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against the applicant on 13 September 2013 for: * Charge I - Violation of Article 121, UCMJ: * Specification 1: wrongfully using marijuana, a schedule I controlled substance on or about 26 February 2013 * Specification 2: wrongfully possessing marijuana, a schedule I controlled substance on or about 26 February 2013 * Specification 3: wrongfully distributing marijuana, a schedule I controlled substance on or about 26 February 2013 * Charge II - Violation of Article 134, UCMJ, for wrongfully and without authority wearing upon his uniform the Ranger Tab 9. On 13 September 2013, an administrative flag was imposed against the applicant to prevent him from receiving any favorable personnel actions due to adverse action. 10. On 23 September 2013, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10, in lieu of trial by court-martial. He consulted with legal counsel and was advised of the basis for the trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a UOTHC discharge; and the procedures and rights that were available to him. He elected not to submit statements in his own behalf. 11. The applicant's chain of command recommended approval of the Chapter 10 request, with a service characterization of UOTHC. 12. On 24 October 2013, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial, with his service characterized as UOTHC. He further directed the applicant be reduced to the lowest enlisted grade. 13. Orders and the applicant's DD Form 214 confirm he was discharged on 1 November 2013, in the rank/grade of private/E-1, under the provisions of Army Regulation 635-200, Chapter 10, by reason of "In Lieu of Trial by Court-Martial" with Separation Program Designator (SPD) code "KFS" and RE code "4." He was credited with completing 6 years, 4 months, and 26 days of net active service this period. a. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded or authorized the: * Afghanistan Campaign Medal with two Campaign Stars * Iraq Campaign Medal with two Campaign Stars * Army Commendation Medal (2nd Award) * Army Good Conduct Medal * National Defense Service Medal * Global War on Terrorism Service Medal * NCO Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon (2nd Award) * NATO [North Atlantic Treaty Organization] Medal * Combat infantryman Badge * Parachutist Badge b. Item 18 (Remarks) shows, in part, he: * had continuous honorable service from 6 June 2007 to 20 October 2009 * completed his first full term of service 14. The applicant petitioned the Army Discharge Review Board (ADRB) for upgrade of his discharge. On 5 February 2016, after careful review, the ADRB determined he was properly and equitably discharged. Accordingly, his request was denied. 15. The applicant petitioned the ABCMR for relief. On 19 March 2021, he was informed the ABCMR had carefully considered his request for upgrade of his discharge, under procedures established by the Secretary of the Army and denied his request. 16. The applicant provides a Certificate of Completion, dated 19 October 2016, from the Department of Veterans Affairs Medical Center at, in recognition of his completion of the Veterans Treatment Program Re-entry Group. 17. The available record is void of evidence and the applicant has not provided evidence showing he was treated for a diagnosis of schizoaffective disorder during his period of service. 18. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in- lieu of trial by court-martial. In doing so, he would have waived his opportunity to appear before a court-martial and risk a felony conviction. A characterization of UOTHC is authorized and normally considered appropriate; however, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service, they have been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 19. By regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. 20. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 21. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under other than honorable conditions (UOTHC) discharge to an under honorable conditions (General) discharge, and an upgrade of his Reentry Eligibility (RE) code from "4" to "2." He contends schizoaffective disorder mitigated in his misconduct. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * Applicant enlisted in the RA 6 June 2007. * He deployed to Afghanistan as an 11B from 3 December 2007 until 15 March 2008, Iraq from 5 June 2008 until 8 August 2008, and Iraq from 1 December 2008 until 15 November 2009 * Applicant reclassed to a 15W in 2010 and deployed to Afghanistan again 6 February 2012 until 28 September 2012. * He was counseled 8 April 2013, and on 23 April 2013 received a non-judicial punishment (NJP) for creating and using falsified ETS orders (“intent to deceive, make official record). * A Commander's Inquiry revealed the applicant forged a Graduation Certificate and Permanent Orders showing he had successfully completed Ranger School training and had been awarded the Ranger Tab. * On 13 September 2013, court-martial charges were preferred against the applicant for (charge 1, specification 1-3) wrongfully using marijuana, wrongfully possession marijuana and wrongfully distributing marijuana on or about 26 February 2013, and (charge 2) for wrongfully and without authority wearing upon his uniform the Ranger Tab. * The applicant voluntarily requested discharge under AR 635-200, chapter 10, in lieu of trail by court martial and it was approved. Applicant was discharged on 1 November 2013, by reason of "In Lieu of Trial by Court-Martial" with Separation Program Designator (SPD) code "KFS" and RE code "4,” and a discharge of UOTHC. * Applicant previously requested an upgrade from the Army Discharge Review Board (ADRB). The request was denied on 5 February 2016 as his discharge was found proper and equitable. * The applicant petitioned the ABCMR for relief on 19 March 2021, he was informed the ABCMR had carefully considered his request for upgrade of his discharge, under procedures established by the Secretary of the Army and denied his request. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 293, his ABCMR Record of Proceedings (ROP), certificate of completion, DD 214 and documents from his service record and separation packet. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV) and AHLTA. Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. This applicant voluntarily discharged in lieu of trial by court martial after being charged with marijuana possession, use and distribution as well as wrongfully wearing a Ranger tab after forging a graduation certificate and orders. In his application he asserts that his case was never determined (which would be due to him choosing a chapter 10 separation to avoid court martial) and that his mental health was a mitigating factor. He contends that he was diagnosed with schizoaffective disorder during his time in service, however this does not appear accurate. His electronic health record (EHR) shows that the applicant began engaging in behavioral health care on 7 November 2012, when he walked into his brigade mental health clinic reporting nightmares and deployment visions and noted having difficulty with trauma symptoms since his first deployment in 2008. He was initially diagnosed with an adjustment disorder with anxiety. He was seen again on 21 November 2012 for a full intake, where his diagnosis remained though a rule out of PTSD was added. He engaged with a psychiatrist on 28 November 2012, was diagnosed with PTSD, and was started on medication (Zoloft). Applicant appeared engaged in care for several months, and then was seen 29 March 2013 for a command directed behavioral health evaluation after he forged his ETS documents and “exercised illogical thought processes while attempting to leave the unit.” The commander noted this was one of a new series of “strange erratic behaviors.” The applicant was found to test positive for THC and was referred to Army Substance Abuse Program (ASAP). He was found fit for duty and meeting medical retention standards. No additional diagnosis was given outside of cannabis use. He began engaging with ASAP 18 April 2013, attending care through group and individual work. He completed treatment in July 2013 and was encouraged to do aftercare programming, but it appears a work detail may have gotten in the way. He returned to individual therapy in August and attended several sessions before he was discharged from the Army (last session was 21 October 2013). In summary, he was never diagnosed with schizoaffective disorder while in the service, but was diagnosed with an adjustment disorder, PTSD, and cannabis use. e. The applicant has been engaged in mental health care through the VA since 2014. The applicant was first seen for a compensation and pension (C&P) evaluation 8 September 2015, where the psychologist did not diagnosis him with PTSD, nor any other condition at the time. He was seen again 5 October 2016 and was diagnosed with Antisocial Behavior, with the examiner again stating he did not meet criteria for any other mental health disorder. There are no other C&Ps available in his record, however at some point he was given a 70% service connection for PTSD. In 2016 he began working with the VA through the Veterans Justice Outreach (VJO) program, after he was visited in jail by a VJO worker, after the applicant had allegedly tried attacking an Army recruiter with a hammer. Due to homelessness, in 2016 he also began working with the HUD-VASH program. He was most consistently seen for homelessness, with minimal therapy engagement. He was diagnosed with schizoaffective disorder and depression, as it’s mentioned in his charts first around May 2020, though it appeared to be a historical diagnosis already with no details on the assessment leading to this conclusion. In summary, he’s held numerous diagnoses since getting out of the Army to include antisocial personality disorder, major depression, schizoaffective disorder, homeless, other problems related to housing and economic circumstances and PTSD. f. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor there is sufficient evidence to support that the applicant likely had a mitigating condition during his time in service, and he has since received 70% service connection for a mitigating condition (PTSD). This advisor would content that only two of of his charges should be mitigated. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant asserts a mitigating condition. 2. Did the condition exist or experience occur during military service? Yes, the applicant contends he had schizoaffective disorder during his time in service during his time in service. He has since been 70% service connected for PTSD. 3. Does the condition or experience actually excuse or mitigate the discharge? Partial: The applicant contends schizoaffective disorder was a mitigating factor and per Liberal Consideration his contention is sufficient to warrant the board’s consideration. Medical documentation from his time in service does not support this diagnosis, however, he was diagnosed with an adjustment disorder, cannabis use and PTSD, and since has received 70% service connection for PTSD. Substance possession and use are often self-medicating behaviors, used to avoid and mask symptoms, and this can be associated with the natural history and sequelae of numerous disorders, to include trauma, depression and anxiety. However, there is no nexus between his asserted mental health condition(s) and behaviors such as marijuana distribution, forging documents, or wrongfully wearing Ranger tabs. Hence, a partial upgrade, at most, would be warranted. Of note, it would be inappropriate to change his re-entry code from 4 to 2, as the applicant, with his asserted diagnosis and service-connected disorder, would not be eligible for re-entry. Per DoDI 6130.03, he would not meet the standard for enlistment or induction into the military services with a schizoaffective disorder diagnosis nor PTSD. And per AR 40-501, if he held the schizoaffective disorder diagnosis now while in the service, he would likely not be found fit for duty. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board noted based on the preponderance of evidence, under liberal consideration there is no nexus between his asserted mental health condition(s) and behaviors such as marijuana distribution, forging documents, or wrongfully wearing Ranger tabs. The Board concurred with the advisory official finding insufficient evidence of in-service mitigating factors to overcome the misconduct. Furthermore, the Board determined that the character of service and reentry code the applicant received upon separation were not in error or unjust. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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, U.S. Code, Section 1556, provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an UOTHC discharge. b. 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. c. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. When a Soldier was to be discharged UOTHC, the separation authority would direct an immediate reduction to the lowest enlisted grade. 4. Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. It states that the separation code "KFS" is an appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 10, by reason of In Lieu of Trial by Court-Martial. Additionally, the SPD/RE Code Cross Reference Table established that RE code "4" was the proper reentry code to assign to Soldiers separated under this authority and for this reason. 5. 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. * RE code "1" applies to Soldiers completing their term of active service, who are considered qualified for enlistment if all other criteria are met * RE code "2" is no longer in use but applied to Soldiers separated for the convenience of the government, when reenlistment is not contemplated, who are fully qualified for enlistment/reenlistment * RE code "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, whose disqualification is waivable – they are ineligible unless a waiver is granted * RE code "4" applies to Soldiers separated from last period of service with a non- waivable disqualification 6. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) to carefully consider the revised post-traumatic stress disorder (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. 7. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury; sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to 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. 8. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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) AR20220011946 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1