1. Applicant's Name: a. Application Date: 28 June 2019 b. Date Received: 2 July 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 general (under honorable conditions). The applicant seeks relief contending, in effect, he did not receive the proper treatment for depression and anxiety he endured during his tenue in the Army. In a records review conducted on 3 November 2021, and by a 3 - 2 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, to include a prior period of Honorable service, and the circumstances surrounding the discharge (i.e. in-service and post-service diagnosis of PTSD). Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. Additionally, the Board determined the narrative reason, SPD code, and RE code were proper and equitable and voted not to change them. 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: 13 July 2018 c. Separation Facts: (1) Date DD Form 458 (Charge Sheet): On 21 June 2018, the applicant was charged with: Charge I: Violating Article 86, UCMJ, for being AWOL from 13 March to 30 May 2018. (2) Legal Consultation Date: 22 June 2018 (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 6 July 2018 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 April 2014 / 4 years b. Age at Enlistment / Education / GT Score: 30 / HS Graduate / 95 c. Highest Grade Achieved / MOS / Total Service: E-5 / 92G, Culinary Specialist / 6 years, 23 days d. Prior Service / Characterizations: RA, 3 April 2012 to 27 April 2014 / HD e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: ARCOM, AAM-2, AGCM, NDSM, GWOTSM, KDSM, NCOPDR, ASR, OSR g. Performance Ratings: NIF h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. CID Report of Investigation, dated 22 January 2014, shows the investigation did not develop sufficient evidence to establish probable cause to prove or disprove an unlawful sexual act occurred. After a thorough investigation and a review of the totality of the investigative facts, evaluation of evidence, witness interviews, and crime scene examination the initial complaint could not be substantiated or refuted. AR 15-6 Investigation Findings and Recommendations, dated 14 December 2016, reflects: The investigation officer found: The applicant verbally and nonverbally sexually harassed [redacted]; The applicant verbally sexually harassed [redacted]; The applicant verbally sexually harassed [redacted]; The applicant had a prohibited relationship with PFC C., in violation of AR 600-20 by borrowing money from PFC B. The applicant maltreated subordinates in violation of Article 93 of the UCMJ. The investigation officer recommended: The chain of command to consider UCMJ action; The chain of command to consider involuntary separating the applicant; and, The chain of command to consider transferring the applicant to a position away from Soldiers. DA Form 4856, dated 2 March 2017, which states the Commander found there was probable cause that the applicant sexually harassed and maltreated three Soldiers. It was also found he had a prohibited relationship with a Soldier by borrowing money. There was an official 15-6 investigation conducted and the previously stated acts were found. The investigation Officer recommended the CoC consider UCMJ and the CoC consider involuntary separation of his service and the CoC consider transferring him to a position away from Soldiers. FG Article 15, dated 24 April 2017, for wrongfully borrowing money from PFC B. (between 1 February and 17 November 2016). For maltreating a person subject to his orders and making inappropriate comments of a sexual nature, flirting with her, asking her to come into his house, withholding a sick call slip from her, and asking her for a photo of herself on or about 1 February to 17 November 2016. The punishment consisted of a reduction to E-4; forfeiture of $1,216 pay per month for two months (suspended); extra duty and restriction for 45 days; and, written reprimand. Memorandum of Reprimand, dated 22 December 2017, which states the applicant was being reprimanded for sexually harassing three junior enlisted Soldiers. He repeatedly sexually harassed SPC C., PVT L. and SPC S. by making inappropriate comments to them of a sexual nature and flirting with them - despite their continued rejections and corrections of his conduct. Additionally, he borrowed approximately $200 from SPC B. DA Form 4187, dated 13 March 2018, shows the applicant duty status was changed from present for duty to absent without leave effective 0630 on 13 March 2018. DA Form 4187, dated 13 April 2018, shows the applicant's duty status was changed from absent without leave to dropped from the rolls effective 0630 on 13 April 2018. DA Form 4187, dated 30 May 2018, shows the applicant's duty status was changed from dropped from rolls to present for duty effective 0630 on 30 May 2018. Law Enforcement Report, dated 15 June 2018, reflects the applicant failed to report for duty at 0630 hrs., on 12 March 2018 and was declared AWOL effect 0630 hours on 13 March 2018, his estranged wife called to ask about his whereabouts. She stated her husband had been admitted to 11W last April and was diagnosed with severe panic and anxiety. She also stated he donates plasma at a facility twice a week. At 1414 hours, on 13 April 2018, further investigation revealed the applicant was Dropped from Rolls effective 0630 hours, on 13 April 2018. At 1425 hours, on 30 May 2018, investigation revealed the applicant had turned himself in at approximated 1518 hrs. He was declared present for duty effective 1435 hours on 30 May 2018. i. Lost Time / Mode of Return: 78 days: (AWOL, 13 March 2018 - 30 May 2018) / NIF j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 25 July 2017, reflects no duty limitations due to behavioral health reasons. Soldier met medical retention standards and was cleared for administrative action. Diagnosis: adjustment disorder, unspecified. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; five VA Forms 21-4138; VA Form 21-0781; and DD Form 214. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) 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 5 provides for the basic separation of enlisted personnel for the convenience of the government. Paragraph 5-3 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memorandums. Secretarial separation authority is normally exercised on a case-by-case basis. (6) 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. (7) 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.) (8) Paragraph 10-8b stipulates Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper. 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. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years' active Federal service. Eligibility: Ineligible for enlistment. 8. 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 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 because of depression and anxiety he did not receive the proper treatment for his issues. The applicant's AMHRR contains documentation that supports a diagnosis of in service adjustment disorder. The AMHRR shows the applicant underwent a mental status evaluation (MSE), which shows no duty limitations due to behavioral health reasons. Soldier met the medical retention standards and was cleared for administrative action. The MSE was considered by the separation authority. The third party statements provided with the application speak of the applicant's different behavior when he returned home from the Army. Prior to joining the Army, the applicant was outgoing. After returning home the applicant was irritable, he could not sleep, had nightmares and his inability to keep a job. 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 the applicant's DOD and VA health records. The applicant held an in-service diagnosis of Adjustment Disorder. Post- service, he is service connected for PTSD related to the Ft. Hood shootings. Additional diagnoses are Major Depressive Disorder (MDD) and Panic Disorder. (2) Did the condition exist or experience occur during military service? Yes. The applicant held an in-service diagnosis of Adjustment Disorder due the stressor of disciplinary action after fraternization and marital decline. Post-service, he is service connected for PTSD related to the Ft. Hood shootings, with additional diagnoses are Major Depressive Disorder (MDD) and Panic Disorder; however, whether or not these diagnoses or symptoms existed in- service is unknown. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. Per liberal consideration, and association between trauma and avoidance, the AWOL is mitigated by the applicant's PTSD. (4) Does the condition or experience outweigh the discharge? Yes. The Board concurred with the opinion of the Board's Medical Advisor, a voting member, that mitigating BH illnesses of PTSD, Adjustment Disorder, Major Depressive Disorder (MDD) and Panic Disorder are often associated with the applicant's reason for discharge of AWOL. As a result, the ADRB applied liberal consideration and found that the BH conditions outweighed the cause for separation. b. Response to Contention(s): (1) The applicant contends because of depression and anxiety he did not receive the proper treatment for his issues. The Board determined that this contention was valid and voted to upgrade the characterization of service due to mitigating BH illnesses of PTSD, Adjustment Disorder, Major Depressive Disorder (MDD) and Panic Disorder for applicant's Sexual Harassment, maltreatment of others and AWOL charges. (2) The applicant provided third party statements to support his change in behavior after his service in the Army. The Board recognizes and appreciates the applicant's third party statements and considered this contention during board proceedings. c. The Board determined the characterization of service was inequitable based on the applicant's length and quality of service, to include a prior period of Honorable service, and the circumstances surrounding the discharge (i.e. in-service and post-service diagnosis of PTSD). d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to General, Under Honorable Conditions because the applicant had a BH illnesses of PTSD, Adjustment Disorder, Major Depressive Disorder (MDD) and Panic Disorder which mitigated the applicant's AWOL charge. Thus the prior characterization is no longer appropriate. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code, 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 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 Brian, Please review the signature block, I'm having trouble signing the document. I double click but nothing happens. Please assist. ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20190010097 2