1. Applicant’s Name: a. Application Date: 26 August 2019 b. Date Received: 4 September 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. The applicant seeks relief contending, in effect, that applicant had served four years in the Army honorably, loved being a member of the Armed Forces and served applicant’s country to the best of applicant’s capability, always striving for max PT scores, high weapons qualification, and knowing every aspect of the job and planning on continuing applicant’s career in the Army. However, it was cut short, the applicant claims the applicant was having a problem with sleep terrors, and port sleep due to having high stress from the unit applicant was in. The applicant felt as though applicant was being targeted by leadership, had regular appointments at the health clinic to talk with multiple therapists trying to solve personal issues. The applicant was given an Article 15 for missing several formations due to a new sleep medication applicant was given despite having a profile. Applicant refused to conduct extra duty against the lawful orders of superiors because applicant disagreed with the punishment and felt applicant was being wronged. The next day applicant was placed in Liberty County Jail for 7 days without a magistrate hearing, a visit from a lawyer or any contact from the unit until day 5. On day 7 of being in jail applicant had a magistrate hearing. The magistrate had applicant released immediately and informed the battalion commander that applicant had already served more than what the maximum punishment could have been had this been a court martial and that applicant’s unit had no right to grounds to place applicant in jail. In all that was going on, the lawyer informed applicant they could accept a chapter 10 and that it would be the fastest way out of the Army, so applicant could get out of the unit, applicant accepted it. The applicant states being desperate, scared, and felt helpless. They just wanted to put this all behind them with a discharge that the applicant believed was deserved so applicant could progress their life without the weight of all that happened on Fort Stewart. Applicant wanted to finish the last 198 days in the Army honorably as like the last 4 years of applicant’s contract. Nothing that applicant did would have been punishable especially with time in jail being a civilian and nothing that applicant’s unit did would have been acceptable or legal in a civilian work place. The applicant states being given no out processing time, was never fully transitioned to civilian life form the Army and it still affects applicant today. In a records review conducted on 13 May 2022, 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: 27 April 2017 c. Separation Facts: (1) Date DD Form 458 (Charge Sheet): NIF; however, the 48 hour and 72-hour pretrial confinement review for the applicant dated 31 March 2017, makes reference to the intermediate commander having probable cause to believe; the applicant committed the following offenses triable by a court-martial; On diver’s occasions between on or about 11 January 2017 and 8 March 2017, the applicant without authority, dialed to go to his appointed place of duty, which was Dragoon Field, in violation of Article 86; On diver’s occasions between on or about 8 March 2017 and 30 March 2017, having knowledge of a lawful order issued by CPT J.H., to maintain and sleep in his barracks room between 2200 and 0600 nightly, and order which it was his duty to obey, did fail to obey the same by not sleeping in his barracks room; On or about 29 March 2017, having knowledge of a lawful order issued by LTC R.W.M., to perform extra duty beginning 29 March 2017 as punishment under Article 15, Uniform Code of Military Justice, and order which was his duty to obey, did fail to obey the same by not performing extra duty on 29 March 2017; and On or about 29 March 2017, having been restricted to the limits of Fort Stewart by a person authorized to do so, the applicant did break said restriction, such conduct being to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces (2) Legal Consultation Date: On 3 April 2017, the applicant voluntarily requested discharge in lieu of trial by court-martial under AR 635-200, Chapter 10, for charges preferred against him under the Uniform Code of Military Justice for violation of Article’s 86, UCMJ going AWOL O/A 11 August 2009 to 10 January 2012. (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: On 4 April 2017, the applicant’s chain of command recommended that the applicant be discharged with a characterization of service of Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 13 April 2017 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 February 2013 / 5 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 115 c. Highest Grade Achieved / MOS / Total Service: E-4 / 31B10, Military Police / 4 years, 2 months, 2 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Germany / None f. Awards and Decorations: AAM, AGCM, GWOTSM, ASR, OSR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Memorandum for Record, dated 27 February 2017, which indicates the applicant was command directed to maintain his barracks room and to sleep in his barracks room nightly (2200-0600) due to concerns with his medical issues which required him to take sleep medication. FG Article 15, dated 29 March 2017, for failing to go at the time prescribed to his appointed place of duty on 11 January 2017, 19 January 2017, 26 January 2017, 27 January 2017, 3 February 2017, and 8 March 2017, and disobeying a lawful order from a commissioned officer for wrongfully failing to maintain and sleep in his barracks room between 2200 and 0600 nightly. The punishment consisted of reduction to E-2, forfeiture of a half months pay (suspended) for 180 days, extra duty for 22 days, restriction for 45 days, and an oral reprimand. Pretrial Confinement Order, dated 30 March 2017, indicating the applicant was ordered to be confined as a result of Article 86 x7, Article 92 x2, and Article 134 x1 (Breaking Restriction). Several negative counseling statements for various acts of misconduct and duty performance. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; two letters of support; and DD Form 214 for the period of service under review. 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), 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 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.) (7) Paragraph 10b 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 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaivable 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. f. 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. 8. SUMMARY 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. The applicant’s (AMHRR) 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 several offenses 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 having served four years in the Army honorably and loved being a member of the Armed Forces and served applicant’s country to the best of applicant’s capability, always striving for max PT scores, high weapons qualification, and knowing every aspect of the job and planning on continuing applicant’s career in the Army. However, it was cut short, the applicant was having a problem with sleep terrors, and port sleep due to having high stress from the unit applicant was in. The applicant felt as though applicant was being targeted by leadership, had regular appointments at the health clinic to talk with multiple therapists trying to solve personal issues. The applicant was given an Article 15 for missing several formations due to a new sleep medication applicant was given despite having a profile. Applicant refused to conduct extra duty against the lawful orders of superiors because applicant disagreed with the punishment and felt applicant was being wronged. The applicant’s contentions were noted; the applicant is to be commended on applicant’s in- service accomplishment as noted in the application. However, the service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant’s numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. While the applicant may believe their stress at work was the underlying cause of applicant’s misconduct, the record of evidence does not demonstrate that the applicant sought relief from stress through command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers. Likewise, has provided no evidence that applicant should not be held responsible for applicant’s misconduct at the time of discharge. 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, applicant submissions and third party statements, and found the applicant was diagnosed with Adjustment Disorder, which, in the opinion of the Board’s Medical Advisor, after applying liberal consideration, could potentially mitigate a discharge. (2) Did the condition exist or experience occur during military service? Yes. The Boards Medical Advisor found the applicant was diagnosed with Adjustment Disorder during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that an Adjustment Disorder does not render an individual unable to make conscious choices. Moreover, documentation supports the applicant made conscious decisions to operate on applicant’s terms, in the face of orders and known expectations. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board concurred with the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that any of the applicant’s medical conditions of Adjustment Disorder completely outweighed the basis for applicant’s separation – FTR, disobeyed a lawful order from a commissioned officer, failure to perform extra duty and breaking restriction orders. b. Response to Contention(s): (1) The applicant contends having served four years in the Army honorably and loved being a member of the Armed Forces and served applicant’s country to the best of applicant’s capability. The Board considered this contention during proceedings, however this contention alone does not warrant an upgrade, the discharge is appropriate due to the severity of the applicant’s misconduct. (2) The applicant contends having a problem with sleep terrors, and port sleep due to having high stress from the unit applicant was in. The Board considered this contention and determined that the applicant’s Adjustment Disorder does not mitigate the applicant’s FTRs, disobeyed a lawful order from a commissioned officer, failure to perform extra duty and breaking restriction orders. (3) The applicant felt as though applicant was being targeted by leadership, had regular appointments at the health clinic to talk with multiple therapists trying to solve personal issues. The Board considered this contention, but determined that the Army has many legitimate avenues available to service members requesting assistance with command issues, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant’s FTRs, disobeyed a lawful order from a commissioned officer, failure to perform extra duty and breaking restriction orders is not an acceptable response to dealing with command issues, thus the applicant was properly and equitably discharged. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. 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 of all the evidence before the Board, the applicant’s Adjustment Disorder did not excuse or mitigate the offenses of FTRs, disobeyed a lawful order from a commissioned officer, failure to perform extra duty and breaking restriction orders. The documentation supports the determination that the applicant made conscious decisions to operate on applicant’s terms, in the face of orders and known expectations. 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 AR20190012762 1