1. Applicant’s Name: a. Application Date: 12 November 2019 b. Date Received: 18 November 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is uncharacterized. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, that Recruiters from Bakersfield East Recruiting Center guided the applicant to address the applicant condition as non-existent. Being the age that the applicant was and the conditions, the applicant believed in their leadership and what was best for the applicant at the time. When the applicant first engaged with the Army Recruiters, the applicant made them aware of the condition. It was not the applicant intention to deceive the Army nor anyone who was employed by the military branch. b. Board Type and Decision: In a records review conducted on 5 August 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: Fraudulent Entry / AR 635-200. Chapter 7 / JDA / RE-3 / Uncharacterized b. Date of Discharge: 17 July 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 3 July 2019 (2) Basis for Separation: The applicant was informed of the following reasons: for on 14 June 2019, the applicant was recommended for separation IAW AR 635-200, Chapter 5-11 EPTS. It was revealed during counseling that the applicant had prior knowledge of the conditions which if known at the time of enlistment would have precluded the applicant from enlisting. Due to this nondisclosure the applicant fraudulently enlisted in the US Army. (3) Recommended Characterization: Uncharacterized (4) Legal Consultation Date: Waived / 3 July 2019 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 9 July 2019 / Uncharacterized 4. SERVICE DETAILS: a. Date / Period of Enlistment: 6 May 2019 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 21 /HS Graduate / 87 c. Highest Grade Achieved / MOS / Total Service: E-1 / None / 2 months, 12 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: None g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 12 June 2019, for being disrespectful in deportment towards Drill Sergeant G., a noncommissioned officer on or about 20 May 2019, and disobeying a lawful order from Drill Sergeant G. on or about 20 May 2019. The punishment consisted of forfeiture of $362.00 pay, and extra duty and restriction for 14 days. Entrance Physical Standards Board (EPSBD) Proceedings dated 14 June 2019, which indicates the applicant was diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood; Developmental Disorder of Scholastic Skills, Unspecified (by history, per patient report); and Autistic Disorder (by history, per patient report). It was recommended that the applicant be expeditiously separated from active duty in accordance with Army Regulation 635-200, Chapter 5-11. Memorandum dated 14 June 2019, from D.E.C., Contact Representative Patient Administration, RWTMC; for Commander, C Company, 31st Engineer Battalion, 1st Engineer Brigade, Fort Leonard Wood, MO, which indicated the applicant had a medical/physical condition which if identified at time of initial entry into the US Armed Forces would have precluded the applicant current induction or enlistment IAW Chapter 2, AR 40-501. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Entrance Physical Standards Board (EPSBD) Proceedings dated 14 June 2019, which indicates the applicant was diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood; Developmental Disorder of Scholastic Skills, Unspecified (by history, per patient report); and Autistic Disorder (by history, per patient report). It was recommended that the applicant be expeditiously separated from active duty in accordance with Army Regulation 635-200, Chapter 5-11. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 in lieu of DD Form 293; medical documents; partial documents from the separation packet; 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) Paragraph 7-17 provides, in pertinent part, that a fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection. This includes all disqualifying information requiring a waiver. A Soldier who concealed his or her conviction by civil court of a felonious offense normally will not be considered for retention. (6) Paragraph 7-23 stipulates A Soldier discharged under the provisions of this chapter will be furnished DD Form 256A or assigned a character of service of under other than honorable conditions. If in entry-level status, service will be described as uncharacterized, as appropriate. In addition to chapter 3, section II, the following factors will be considered in determining the character of service to be issued during the current period of service: Evidence of pre-service misrepresentation that would have precluded, postponed, or otherwise affected the Soldier’s enlistment eligibility. Characterization will normally be under other than honorable conditions if the fraud involves concealment of a prior separation in which service was not characterized as honorable. The offense of fraudulent enlistment (10 USC 883; Art 83 UCMJ) occurs when the Soldier accepts pay or allowances following enlistment procured by willful and deliberate false representation or concealment of his/her qualifications. Therefore, upon receipt of pay and allowances, it becomes an in-service activity by the Soldier and may be considered in characterizing his/her period of service, even though he/she is not tried for the offense. When the individual is in an AWOL status, or in desertion, or in the hands of civil authorities, the provisions of chapter 2, section III, must be followed. 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 “JDA” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 7, paragraph 7-17, fraudulent entry. 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 waivable and nonwaivable separations. Table 3-1 defines reentry eligibility (RE) codes: RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. Eligibility: Ineligible unless a waiver is granted. 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 record of service, the issues and documents submitted with the application were carefully reviewed. The applicant’s Army Military Human Resource Record (AMHRR) indicates separation action was initiated against the applicant for fraudulently enlisting in the US Army. The applicant was separated under the provisions of Chapter 7, paragraph 7-17, AR 635-200 with an uncharacterized discharge. The applicant seeks relief contending that Recruiters from Bakersfield East Recruiting Center guided the applicant to address the condition as non-existent. Being the age that the applicant was and the condition, the applicant believed in their leadership and what was best for the applicant at the time. When the applicant first engaged with the Army Recruiters, the applicant made them aware of the condition. It was not the applicant intention to deceive the Army nor anyone who was employed by the military branch. The applicant’s contentions were noted. The Entrance Physical Standards Board (EPSBD) Proceedings dated 14 June 2019, indicated the applicant was diagnosed with an Adjustment Disorder with Mixed Anxiety and Depressed Mood; Developmental Disorder of Scholastic Skills, Unspecified (by history, per patient report); and Autistic Disorder (by history, per patient report). It was recommended that the applicant be expeditiously separated from active duty in accordance with Army Regulation 635-200, Chapter 5-11. The Memorandum dated 14 June 2019, from D.E.C., Contact Representative Patient Administration, RWTMC; for Commander, C Company, 31st Engineer Battalion, 1st Engineer Brigade, Fort Leonard Wood, MO, indicated the applicant had a medical/physical condition which if identified at time of initial entry into the US Armed Forces would have precluded the applicant current induction or enlistment IAW Chapter 2, AR 40-501. 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, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: Adjustment Disorder and family reported pre-enlistment Autism. (2) Did the condition exist or experience occur during military service? Yes. The applicant had an Adjustment Disorder in-service. The applicant asserted Autism pre-enlistment with grandmother concurrence, which is a developmental disorder and does not resolve, i.e. it also existed in-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 while the developmental disorder is acknowledged, which in some cases can impair an individual’s abilities, documentation supports the applicant had awareness, understood rules and regulations, and recognized consequences leading applicant to initially deny behavioral health history seeking a failure to adapt discharge. (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 the applicant’s Adjustment Disorder and pre-existing Autism outweighed the basis for applicant’s separation – fraudulent entry. b. Response to Contention(s): The applicant seeks relief contending that Recruiters from Bakersfield East Recruiting Center guided applicant to address applicant’s condition as non- existent. When applicant first engaged with the Army Recruiters, applicant made them aware of the condition. It was not applicant’s intention to deceive the Army nor anyone who was employed by the military branch. The Board determined that UNC is the proper characterization of service as the applicant’s service was not long enough to be properly assessed. A general discharge (GD) under honorable conditions is not authorized under ELS conditions and an honorable discharge (HD) is rarely ever granted. An HD may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty. The uncharacterized description of service accurately reflects the applicant’s overall record of service. An uncharacterized discharge is neither positive nor negative and it is not meant to be a negative reflection of a Soldier’s military service. It means the Soldier has not been in the Army long enough for a character of service to be rated as honorable or otherwise. c. The Board determined that the discharge is, at this time, proper and equitable, considering 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 there were no mitigating factors for the Board to consider. Since the applicant was discharged for fraudulent entry due to Autism diagnosis prior to military service, Uncharacterized is proper and equitable. 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 AR20200001460 1