1. Applicant's Name: a. Application Date: 11 March 2019 b. Date Received: 13 March 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant's counsel requests an upgrade of the under other than honorable conditions discharge to general, under honorable conditions. The applicant's counsel seeks relief contending, in effect, the applicant's discharge was inequitable because a mental health condition due to personal problems were major contributing factors in the misconduct. The applicant's mental health conditions and personal experiences outweighs the misconduct. Counsel states the applicant was diagnosed with adjustment disorder with anxiety and depressed mood and ADHD. The mother of the applicant's young daughter denied the applicant the opportunity to see his daughter before leaving which caused extreme emotional distress. The applicant self-medicated with alcohol and subsequently attempted suicide by ingesting large amounts of medications. The applicant was taken to a hospital and placed under suicide watch. The applicant attempted suicide again in the presence of escorts. The military police (MPs) were called and the applicant resisted their attempt to restrain him which resulted in an altercation. Due to the altercation with the MPs, the applicant was charged with failure to report, resisting apprehension. and assault upon an MP. These charges directly stemmed from the applicant's suicide attempt. The applicant's counsel also states the applicant elected an Other Than Honorable discharge in lieu of court-martial; however, the discharge is inequitable because the applicant's misconduct was directly related to the applicant's mental health crisis. Had the applicant's mental health issues been taken into account at the time, he likely would have received a more favorable discharge. The applicant's discharge is also inequitable due to the service history. Other than the suicide attempts, applicant had no other misconduct. The applicant received many positive evaluations and awards. The applicant also received a Letter of Commendation. prior to the mental health breakdown. The applicant's counsel goes on to state the applicant was a good soldier and served over five years, including over three years of foreign service. However, despite the applicant's honorable service, the applicant is ineligible for needed benefits. In light of the applicant in-service mental health symptoms, which included two suicide attempts, and over five years of service with multiple awards, the Board should find that the applicant's discharge was inequitable. The applicant's counsel further states the Hagel Memorandum and subsequent Carson Memorandum instruct review boards to consider whether PTSD or other mental health conditions were mitigating factors in the misconduct that led to a veteran's discharge. In 2017, clarifying guidance was issued based in whole or in part to mental health conditions. In a records review conducted on 14 May 2021, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the applicant's length of service, valor, the circumstances surrounding the discharge (OBHI), and prior period of honorable service. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General Under Honorable Conditions. Please see Section 9 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: 20 June 2014 c. Separation Facts: (1) DD Form 458 (Charge Sheet): NIF (2) Legal Consultation Date: 20 May 2014 (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) Recommendation Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 2 June 2014 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 December 2010 / 4 years b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 100 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92R, Parachute Rigger / 5 years, 1 month, 22 days d. Prior Service / Characterizations: RA, 29 April 2009 - 1 December 2010 / HD e. Overseas Service / Combat Service: Italy / None f. Awards and Decorations: AGCM, NDSM, GWOTSM, NCOPDR, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Memo: Acknowledgement of Rights, dated 19 May 2014, reflects the applicant acknowledged he was being investigated in a case that had been preferred and recommended for trial by court-martial for the following offenses: Charge I: Violation of the UCMJ, 86: Failing to go to place of duty Charge II: Violation of the UCMJ, 95: Resisting Apprehension Charge III: Violation of the UCMJ, 128: Assault upon a person in the Execution of Law i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: A Medical Record Report, dated 7 November 2013, reflects the applicant was diagnosed with Adjustment Disorder with Depressed Mood A Medical Record Report, dated 13 November 2013, reflects the applicant was diagnosed with Adjustment Disorder with Anxiety and Depressed Mood; ADHD, Predominately Hyperactive- Impulsive Type 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, DD Form 214, ERB, Order 113-06, COA-2, Letter of Commendation, DA Form 1059 Service School Academic Evaluation Report), Development Counseling Forms, Memo, Counseling Packet....), DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), medical records, Memo, Chapter 10..., Memo, Acknowledgement of Rights Advisement, Kurta Memo, Applicant's statement, Performance Form, 2 letters of support, documents pertaining to post-service accomplishments 6. POST SERVICE ACCOMPLISHMENTS: The applicant states by furthering his education and seeking mental health assistance he could become successful, financially stable and be able to provide his daughter with a better life. 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), dated 25 September 2019, 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 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (6) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (7) Paragraph 14-12c, states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, In Lieu of Trial by Court-Martial. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of "4." 8. DISCUSSION OF FACT(S): The applicant, through counsel, requests an upgrade of his under other than honorable conditions discharge to general, under honorable conditions. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of record 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 Chapter 10, AR 635-200, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and he indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veterans' benefits. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant provided insufficient evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance, such that he should have been retained on Active Duty. The applicant's counsel contends the discharge was inequitable because a mental health condition was major contributing factors in the misconduct. The applicant's service record contains documentation that supports a diagnosis of in service Adjustment Disorder with Anxiety and Depressed Mood and ADHD, Predominately Hyperactive-Impulsive Type. The applicant's counsel also contends personal problems were major contributing factors in the misconduct and outweighs the misconduct. The applicant's counsel goes on to contend that other than the suicide attempts, the applicant had no other misconduct. The applicant's counsel further contends the applicant was a good soldier and served over five years, including over three years of foreign service. The applicant's counsel additionally contends, despite the applicant's honorable service, the applicant is ineligible for needed benefits. However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 9. 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? Yes. The ADRB's Medical Advisor, a voting member of the Board, reviewed the applicant's DOD and VA health records. The applicant's in-service diagnosis of ADHD may partially mitigate his discharge. (2) Did the condition exist or experience occur during military service? Yes. Applicant was diagnosed with ADHD while on active duty. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. Applicant's in-service diagnosis of ADHD partially mitigates his discharge. As there is an association between ADHD and forgetfulness, there is a nexus between his symptoms of ADHD and his failure to report. ADHD does not mitigate his offenses of resisting arrest and assaulting a police officer as these offenses, in the Medical Advisor's opinion, are not the result of any BH issue but, rather, the result of a conscious volitional choice made by the applicant as evidenced by his admitted poor attitude. (4) Does the condition or experience outweigh the discharge? Partially. The Board concurred with the opinion of the Board's Medical Advisor, a voting member, that ADHD is often associated with forgetfulness. As a result, the ADRB applied liberal consideration and found that the cause for separation is partially mitigated and concluded the applicant's ADHD does outweigh the applicant's failure to report offense as a reason for applicant's discharge. However, the applicant's offenses of resisting arrest and assaulting a police officer are not medically mitigated, as these are a result of a conscious volitional choice made by the applicant as evidenced by his admitted poor attitude, not a result of ADHD or any other BH issue, and therefore the Board concluded are not outweighed by applicant's ADHD. b. Response to Contentions: (1) The applicant's counsel contends the discharge was inequitable because a mental health condition was a major contributing factor in the misconduct. The Board determined that the applicant's ADHD only had a minor influence on the applicant's misconduct, but voted to grant a portion of the requested relief. (2) The applicant's counsel also contends personal problems were a major contributing factors in the misconduct and outweighs the misconduct. However, there was no corroborating evidence or testimony submitted to support this contention. Therefore, the Board did not find that counsel's testimony persuasive enough to outweigh other evidence in order to support the requested relief. (3) The applicant's counsel goes on to contend that other than the suicide attempts, the applicant had no other misconduct. The applicant's record includes three Court Martial charges including Violation of the UCMJ, 86: Failing to go to place of duty (FTR), Violation of the UCMJ, 95: Resisting Apprehension, and Violation of the UCMJ, 128: Assault upon a person in the Execution of Law. Despite the fact that the applicant had other misconduct, the ADRB found that the applicant's ADHD diagnosis mitigated his failure to report, and voted to upgrade the character of service to General (Under Honorable Conditions). (1) The applicant's counsel further contends the applicant was a good soldier and served over five years, including over three years of foreign service. The Board carefully considered the applicant's total record. The ADRB found that the applicant's ADHD diagnosis mitigated his failure to report, and voted to upgrade the character of service to General (Under Honorable Conditions). (2) The applicant's counsel additionally contends, despite the applicant's honorable service, the applicant is ineligible for needed benefits. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance regarding applicant's eligibility to veteran's benefits. b. The Board determined that the characterization of service was inequitable based on the applicant's length of service, valor, the circumstances surrounding the discharge (OBHI), and prior period of honorable service. c. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to General, Under Honorable Conditions because the applicant's ADHD mitigated the offense of failure to report, but there were no mitigating factors for the Board to consider for the offenses of resisting arrest or assault on a police officer. With the FTR mitigated by the ADHD diagnosis, the ADRB determined that the applicant's actions no longer constitute a significant departure from the conduct expected of Soldiers in the Army, and the two remaining offenses rendered the applicant's military record satisfactory, but not sufficiently meritorious to warrant an honorable discharge. Therefore, the prior characterization is no longer appropriate, but an upgrade to an honorable characterization was similarly not appropriate. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code due to the seriousness of the applicant's unmitigated offenses listed above, as 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. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under Honorable Conditions 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 NA - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Reentry 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 AR20190006730 1