1. Applicant's Name: a. Application Date: 3 May 2019 b. Date Received: 8 May 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to honorable or general (under honorable conditions). The applicant seeks relief contending, in effect, the actions of his misconduct are strongly related to symptoms of PTSD and he seeks relief based on inequity, the National Defense Authorization Act of 2017, and the Kurta Memo of 2017. In a records review conducted on 27 August 2021, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 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 April 2010 c. Separation Facts: (1) Date DD Form 458 (Charge Sheet): On 5 February 2010, the applicant was charged with: Charge I: Violating Article 89, UCMJ, for behaving himself with disrespect toward his superior commissioned officer by saying to her "Ma'am this ain't about fucking rank, this is about me and my wife, I can fucking talk to my wife." Charge II: Violating Article 90, UCMJ, for having received a lawful command from his superior commissioned officer to "leave" or words to that effect, did, on divers occasions willfully disobey the same. Charge III: Violating Article 91, UMCJ: Specification 1, for assaulting a noncommissioned officer by charging toward her with a clenched fist, pointing his finger in her face, and raised his hand to her. Specification 2, having received a lawful order from a noncommissioned officer to "leave and go back to the battalion" an order which it was his duty to obey, did, on divers occasions willfully disobey. Specification 3, having received a lawful order from a Command Sergeant Major to have no contact with his wife an order which it was his duty to obey, willfully disobey the same. Specification 4, for being disrespectful in language toward a noncommissioned officer by saying "no woman is going to talk to me like that" and "I don't care who you are, you are not going to talk to me like that," or words to that effect. Charge IV: Violating Article 92, UCMJ, by having knowledge of a lawful ordered issued by his battalion commander to wit: Task Force Falcon Prohibited Activities Memorandum, dated 24 November 2009, an order which it was his duty to obey, did, failed to obey by wrongfully entering Specialist N.H female B-Hut, AA-4, without being met at the door, escorted throughout the building or announcing his presence. Charge V: Violating Article 128, UCMJ, by unlawfully grabbing Specialist N.H and pulled her by her sweatshirt. (2) Legal Consultation Date: 17 March 2010 (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: General (Under Honorable Discharge) (5) Separation Decision Date / Characterization: 2 April 2010 / Under Other Than Honorable 4. SERVICE DETAILS: a. Date / Period of Enlistment: 15 March 2006 / 5 years b. Age at Enlistment / Education / GT Score: 22 / High School Graduate / 114 c. Highest Grade Achieved / MOS / Total Service: E-5 / 92A10, Automated Logistical Specialist / 6 years, 7 months, 12 days d. Prior Service / Characterizations: RA, 9 September 2003 - 14 March 2006 / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (6 May 2007 - 22 July 2008); Afghanistan (15 November 2009 - 11 April 2010) f. Awards and Decorations: ARCOM, AAM-2, AGCM-2, NDSM, ACM-2, KDSM, ICM-CS, OSR-2, NCOPDR g. Performance Ratings: 1 November 2008 - 31 October 2009 / Among The Best 1 November 2009 - 2 April 2010 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. Numerous sworn statements from witnesses of the incident, which lead to the discharge. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of his military medical records, dated 29 November 2007 and 28 January 2010, reflecting the applicant had a history of anxiety and mild depression related to his spouse being deployed, and marriage failing due to being apart. The applicant provided a signed letter dated 8 April 2019 from Psychiatry Associates of Kansas City reflecting the applicant was diagnosed with PTSD-chronic. 5. APPLICANT-PROVIDED EVIDENCE: Two DD Forms 293; Enlisted Record Brief; case separation packet; medical records; copies of military personnel records; self-authored statement; post service accomplishments certificates; third party letters; résumé; college transcripts. 6. POST SERVICE ACCOMPLISHMENTS: The applicant provided the following evidence of post- service accomplishments: Certified Federal Contract Manager, Raytheon Six Sigma Specialist, CONNECT Class, Church Baptism, completion of FAR Workshop, completion of Compliance for Government Contractors, completion of Government Contract Accounting, completion of Bombs 101 Nuclear Weapons Training. 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) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. (6) Paragraph 10-8a stipulates a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. (See chap 3, sec II.) 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. f. 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 Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable or 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 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. The applicant contends his misconduct was due to having PTSD. The applicant's AMHRR contains no documentation of PTSD diagnosis. The applicant provided in-service medical records that shows he was treated for anxiety and mild depression; and, evidence of a post service diagnosis of PTSD. The applicant contends his command did not consider his mental status or add his mental evaluation to his case separation file. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends family issues affected behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service. The applicant contends an upgrade of the discharge would allow veterans benefits. Eligibility for veteran's benefits 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. The applicant contends he has accomplished many great things since his discharge from the military. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The third party statement provided with the application speaks highly of the applicant. It recognizes the applicant's good conduct after leaving the Army. 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 Board's Medical Advisor, a voting member, reviewed DoD and VA medical records. The applicant's BH conditions discussed in DOD records were Marital Problems and Phase of Life Circumstance Problems, but no reference to PTSD. The applicant claims to suffer from PTSD, and provided a memo from an M.D. stating this diagnosis, however, the documentation provided from the civilian doctor post-service did not provide any source of trauma or list the diagnostic criteria that led the provider to diagnose the applicant with PTSD. (2) Did the condition exist or experience occur during military service? Yes. The applicant was diagnosed with Marital Problems and Phase of Life Circumstance Problems. The applicant states he developed PTSD while in the military. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The ADRB's Medical Advisor liberally considered all the evidence, including the evidence regarding PTSD and determined that the applicant's PTSD does not excuse or mitigate the misconduct that led to separation from service, which included multiple instances of disrespect, multiple instances of disobeying orders, and assault. (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the applicant's lengthy pattern of misconduct outweighed the applicant's PTSD diagnosis. b. Response to Contention(s): (1) The applicant contends his misconduct was due to having PTSD. The ADRB liberally considered this contention along with all the other evidence, and concluded the applicant's lengthy pattern of misconduct outweighed the applicant's PTSD diagnosis. (2) The applicant contends his command did not consider his mental status or add his mental evaluation to his case separation file. The Board liberally considered the applicant's Marital Problems and Phase of Life Circumstance Problems, but weighing all the evidence determined the basis for separation was appropriate. (3) The applicant contends family issues affected behavior and ultimately caused the discharge. The Board liberally considered the family issues along with the other evidence, but weighing all the evidence determined the family issues did not mitigate the repetitive violations of disobeying orders and disrespect to superiors, or the assault. (4) The applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service, but they did not outweigh the discharge. (5) The applicant contends an upgrade of the discharge would allow veterans benefits. Eligibility for veteran's benefits 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. (6) The third party statement provided with the application speaks highly of the applicant. The Board considered this during proceedings. (7) The applicant contends he accomplished many great things since his discharge. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. c. The Board denied the request upon finding the separation was both proper and equitable. The Board determined that the documentation contained in the AMHRR, as well as evidence submitted by the applicant, and the available medical evidence did not support a finding that the applicant's discharge was improper or inequitable. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service because, despite applying liberal consideration, the applicant's PTSD and other evidence of applicant experiences and medical conditions do not excuse or mitigate the pattern of misconduct with violation of orders, disrespect, and assaults. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, 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 / 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 AR20190006761 5