1. Applicant’s Name: a. Application Date: 11 February 2020 b. Date Received: 12 February 2020 c. Counsel: Yes 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to honorable, a narrative reason change, SPD code change and RE code change. The applicant seeks relief contending, in effect, the applicant faithfully served the United States Army in logistics and combat roles in Qatar, Afghanistan, and Korea. The applicant’s military record should reflect honorable service. The improper and inequitable circumstances surrounding the applicant’s discharge, the otherwise unblemished service record, and other than honorable characterization functioning as an ongoing punishment all provide independent basis for granting relief. b. Board Type and Decision: In a records review conducted on 24 February 2023, 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: 10 February 2012 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 11 November 2011, the applicant was charged with: Charge I: Violating Article 86, UCMJ. The Specification: On or about 7 September 2011, without authority, absent oneself from the unit and did remain so absent until on or about 9 September 2011. Charge II: Violating Article 92, UCMJ. Specification 1: On or about May 2011, the applicant violated a lawful general order, by traveling to the Philippines without authorized Pass. Specification 2: On or about June 2011, the applicant violated a lawful general order by traveling to the Philippines without authorized Pass. Specification 3: On or about September 2011, the applicant violated a lawful general order, by traveling to the Philippines without authorized Pass. Charge III: Violating Article 134, UCMJ. Specification 1: On or about 29 April 2011 and on or about 3 May 2011, the applicant traveled to the Philippines without proper clearance or permission from the command, such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces. Specification 2: On or about 27 May 2011 and on or about 31 May 2011, the applicant traveled to the Philippines without proper clearance or permission from the command, such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces. Specification 3: On or about 2 September 2011 and on or about 9 September 2011, the applicant traveled to the Philippines without proper clearance or permission from the command, such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces. Additional Charge I: Violating Article 86, UCMJ. The Specification: On or about March 2011, the applicant violated a lawful general order, by traveling to the Philippines without authorized Pass. Additional Charge II: Violating Article 134, UCMJ. Specification 1: On or about 2 March 2011 and on or about 7 March 2011, the applicant traveled to the Philippines without proper clearance or permission from the command, such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces. Specification 2: On or about 27 June 2011 and on or about 6 July 201, the applicant traveled to the Philippines without proper clearance or permission from the command, such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces. Specification 3: On or about 2 March 2011 and on or about 7 March 2011, the applicant did at or near Manila, Philippines, wrongfully procure a prostitute, a person not the spouse, to engage in acts of sexual intercourse with the applicant in exchange for money, such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces. Specification 4: On or about 27 May 2011 and on or about 31 May 2011, wrongfully procure a prostitute, a person not the spouse, to engage in acts of sexual intercourse with the applicant in exchange for money, such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces. Specification 5: On or about 27 June 2011 and on or about 6 July 2011, wrongfully procure a prostitute, a person not the spouse, to engage in acts of sexual intercourse with the applicant in exchange for money, such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces. Specification 6: On or about 2 September 2011 and on or about 8 September 2011, wrongfully procure a prostitute, a person not the spouse, to engage in acts of sexual intercourse with the applicant in exchange for money, such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces. (2) Legal Consultation Date: 9 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: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 13 January 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 October 2007 / 6 years b. Age at Enlistment / Education / GT Score: 26 / High School Graduate / 111 c. Highest Grade Achieved / MOS / Total Service: E-6 / 92A30, Automated Logistical Specialist / 7 years, 4 months, 26 days d. Prior Service / Characterizations: RA, 15 September 2004 – 23 April 2007 / HD RA, 24 April 2007 – 8 October 2007 / HD e. Overseas Service / Combat Service: Korea, SWA / Afghanistan (28 February 2008 – 5 May 2008; 31 May 2009 – 1 July 2009); Qatar (26 June 2005 – 21 December 2005) f. Awards and Decorations: AAM-4, AGCM-2, NDSM, ACM-2CS, GWOTEM, GWOTSM, KDSM, NCOPDR, ASR, OSR g. Performance Ratings: 1 March 2010 – 30 November 2010 / Fully Capable 1 December 2010 – 7 September 2011 / Among the Best h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in paragraph 3c(1). i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of VA Benefits Letter, dated 27 July 2022 which reflects the applicant was granted 70 percent service- connected disability for posttraumatic stress disorder (PTSD). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and Listed Exhibits. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has established a career in construction, rebuilt a relationship with the ex-spouse, started a successful new relationship and marriage, and been a loving and present parent for the children. 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 are 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. 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. 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, narrative reason change, SPD code change and RE code change. The applicant’s Army Military Human Resource Record (AMHRR), the issues and documents submitted with the application were carefully reviewed. The evidence in the applicant’s AMHRR 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 the narrative reason for the discharge should be changed. The applicant was separated under the provisions of Chapter 10, AR 635-200, with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “In Lieu of Trial by Court-Martial,” and the separation code is “KFS.” Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214, and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2- 3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends the SPD code should be changed. The SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. The SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations. The SPD code specified by Army Regulations for a discharge under Chapter 10, is “KFS.” The applicant requests a reentry eligibility (RE) code change. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, the applicant was appropriately assigned an RE code of “4.” An RE code of “4” cannot be waived, and the applicant is no longer eligible for reenlistment. The applicant contends good service, including three combat tours. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends suffering from PTSD. The applicant provided a copy of VA Benefits Letter, dated 27 July 2022, which reflects the applicant was granted 70 percent service- connected disability for posttraumatic stress disorder (PTSD). The AMHRR does not contain a mental status evaluation (MSE). The applicant contends other Soldiers with similar offenses were not discharged. The other Soldier’s received non-judicial punishment; however, the applicant was selected to be tried by court-martial. Applicable regulations state each case must be decided on an individual basis, considering the unique facts and circumstances of the particular case. The third-party statements provided with the application speak highly of the applicant. They all recognize the applicant’s good conduct while serving and after leaving the Army. The applicant has established a career in construction, rebuilt a relationship with the ex-spouse, started a successful new relationship and marriage, and been a loving and present parent for the children. 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. 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: Adjustment Disorder, PTSD and Major Depressive Disorder (MDD). (2) Did the condition exist, or experience occur during military service? Yes. The applicant held an in-service diagnosis of Adjustment Disorder. Post-service, the applicant is diagnosed with MDD and is 100% service-connected for PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined there is no mitigation for AWOL and violating orders given all documentation supports intact cognitive processes with clearly defined decisions and justification, records clearly outline travel was for recreation rather than avoidance, and the VA determining the applicant did not have trauma symptoms in-service. Additionally, soliciting prostitutes is not mitigated as there is no nexus between the misconduct and diagnosed conditions. (4) Does the condition or experience outweigh the discharge? No. Based on liberally considering all the evidence before the Board, the ADRB determined that the condition or experience did not outweigh the basis of separation – AWOL, violating an order by traveling outside the peninsula and solicitation of prostitutes. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge, SPD, and RE should be changed. The Board considered this contention and voted no change to the narrative reason or accompanying SPD code is warranted. The applicant’s lengthy and documented misconduct - AWOL, violating an order by traveling outside the peninsula and solicitation of prostitutes – shows an obvious Pattern of Misconduct. (2) The applicant contends good service, including three combat tours. The Board considered the totality of the applicant’s service record but determined the applicant’s discharge was appropriate because the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army and was prejudicial to good order and discipline. By the misconduct of AWOL, violating an order by traveling outside the peninsula and solicitation of prostitutes the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (3) The applicant contends suffering from PTSD. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant’s time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member’s discharge characterization. In this case, the Board considered this contention and determined that the available evidence did not support a conclusion that any of the applicant’s medical conditions mitigated the basis for applicant’s separation. (4) The applicant contends other Soldiers with similar offenses were not discharged. The other Soldier’s received non-judicial punishment however the applicant was selected to be tried by court-martial. The record confirms the applicant’s discharge was appropriate because the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army and was prejudicial to good order and discipline. By the misconduct of AWOL, violating an order by traveling outside the peninsula and solicitation of prostitutes, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (5) The applicant has established a career in construction, rebuilt a relationship with the ex-spouse, started a successful new relationship and marriage, and been a loving and present parent for the children. The ADRB 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 must 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. In this case, the Board considered this contention and determined that the applicant’s AWOL history, violating an order by traveling outside the peninsula and solicitation of prostitutes. After considering the totality of the applicant’s record, the Board voted that no relief is warranted 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 in- service diagnosis of Adjustment Disorder. Post-service, the applicant is diagnosed with PTSD and Major Depressive Disorder (MDD) did not excuse or mitigate the offenses of – AWOL history, violating an order by traveling outside the peninsula and solicitation of prostitutes. 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, and 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 Change 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 AR20200004259 1