1. Applicant's Name: a. Application Date: 17 March 2020 b. Date Received: 23 March 2020 b. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests, through counsel, an upgrade of the under other than honorable conditions discharge and a change of the narrative reason for separation along with a change of the re-entry (RE) and separation program designator (SPD) codes. The applicant's counsel seeks relief contending, in effect, the applicant had a brief lack of judgment that lead to charges being preferred against him. The charges, instead of lesser means of punishment, was an extreme reaction by the applicant's chain of command. The applicant's counsel states, in part, the applicant was charged with wearing a ranger tab that he did not earn and having a ranger course completion certificate in his military record. The applicant admits that he suffered a momentary lapse of judgment and wore a ranger tab that he did not earn. Furthermore, he did not stop the S1 from uploading a ranger certificate of completion into his military records. This misconduct was the basis for the applicant's chapter 10 request, as charges were preferred and it subjected him to a punitive discharge. Counsel contends, according to the applicant, this was a widespread practice and many senior leaders had done the same thing. This is not an excuse for the applicant's misconduct; however, it helps to demonstrate that the applicant was treated unfairly. The applicant's counsel goes on to state that the applicant did commit two of the allegations he was facing; therefore, if he chose to be court-martialed, he would still end up with a federal conviction and face a punitive discharge and confinement. Fearing what a federal conviction would do to him, the applicant chose a discharge in lieu of trial by court-martial. Counsel contends wearing a ranger tab briefly and not stopping a member of the S1 from uploading a ranger certificate does not warrant a court-martial. This is typically something that would be handled by an article 15; however, the applicant's leadership, fearing what the applicant's defense would uncover, got rid of him as fast as they could. They did not want him sticking around and talking about what happened because they knew that several of their senior leaders had done the same thing. The applicant's counsel contends there is no documentation in existence that proves that the applicant committed any misconduct. The unit decided, apparently, to not upload any evidence or even the charge sheet that accompanied the chapter 10 request. At a minimum, the charge sheet should have accompanied the chapter 10 discharge paperwork. The point is not that the applicant committed no misconduct; however, the lack of documentation makes it impossible to support any discharge for the applicant that is not an honorable discharge. Furthermore, the applicant included an enclosure to his chapter 10 request. It was not uploaded to his military record, as it should have been. It is unclear if the approval authority even read the enclosure to the applicant's chapter 10 request, as he was required to do. The applicant's counsel contends even if the Board finds the applicant discharge of in lieu of trial by court-martial was proper, the applicant still should have received an honorable discharge. The applicant's service from 14 January 2004 to 12 December 2008 was so meritorious that any other characterization, besides Honorable, would clearly be improper. The applicant received awards and also had 5 combat deployments. The applicant's counsel contends, after being discharged, the applicant immediately accepted employment as a contractor. The applicant has been steadily employed since being discharged. While working with the Nashville Fire Department, the applicant was commended for his heroism by the city of Nashville. His post service conduct demonstrates that the applicant is a hard-working and productive member of society who had a one-time lapse in judgment while serving on active duty. The applicant's discharge is a miscarriage of justice. The applicant's counsel submits a letter from the applicant in which the applicant states, in part, when he was separated it was a stressful and confusing time for him. He had just returned from a deployment and was having family problems. He admits to making a mistake by wearing a badge that he did not earn and allowing the accompanying certificate to added to his record; however, the rest of his service was spotless. He does not feel that the under other than honorable conditions discharge was fair considering all of his accomplishments. In a records review conducted at Arlington, VA on 28 April 2021, and by a 3-2 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) 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: 12 December 2008 c. Separation Facts: (1) DD Form 458 (Charge Sheet): NIF (2) Legal Consultation Date: NIF (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: 3 December 2008 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 June 2006/ 6 years b. Age at Enlistment / Education / GT Score: 20/ 1-year college / 117 c. Highest Grade Achieved / MOS / Total Service: E-6/ 25U, Signal Support System Specialist/ 9 years, 7 months, 29 days d. Prior Service / Characterizations: USAR, 2 July 1997 - 13 April 1999/ HD RA, 14 April 1999 - 7 June 2006/ HD e. Overseas Service / Combat Service: SWA/ Kosovo, (2 February 1999 - 1 August 1999), Afghanistan (2 January 2002 - 1 August 2002), (16 December 2003 - 20 January 2004), Iraq, (12 May 2004 - 15 August 2004), (31 October 2004 - 16 December 2004), (11 October 2005 - 5 January 2006), (5 April 2006 - 10 July 2006), (5 October 2006 - 15 December 2006), (13 February 2007 - 6 March 2007) f. Awards and Decorations: AM with "V" Device, ARCOM (2nd Award), AAM (3rd Award), MUC, USA/USAF PUC, VUA, AGCM (3rd Award), NDSM, ACM with Arrowhead, GWOTEM, GWOTSM, ICM with Campaign Star, NCO Professional Development Ribbon (2nd Award), ASR, Army Reserve Component Overseas Training Ribbon, KCM with Bronze Service Star, NATO Medal, Senior Parachutist Badge, Parachutist Badge, Air Assault Badge, Driver and Mechanic Badge - mechanic, Marksman Marksmanship Qualification Badge with Carbine and Pistol Bars. g. Performance Ratings: June 2003 - May 2004 / Among The Best June 2004 - May 2005 / Among The Best June 2005 - May 2006 / Among The Best 1 June 2006 - 31 May 2007/ Among The Best 1 June 2007 - 31 October 2007/ Among The Best 1 November 2007 - 31 October 2008/ Marginal h. Disciplinary Action(s) / Evidentiary Record: None i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provides a VA Rating Decision, dated 26 December 2019, which shows VA awarded the applicant service connection for PTSD with an evaluation of 70-percent effective 28 February 2019. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Counsel's Brief; military service records; case separation packet; personal statement; VA Rating Decision; Post-Service Certificates and Achievements pertaining to the applicant job as an EMT, Performance Evaluations 6. POST SERVICE ACCOMPLISHMENTS: The applicant states he is a certified paramedic and emergency medical technician and he has received commendations from the Mayor of Nashville. 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 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (6) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (7) Paragraph 14-12c, states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of "3." 8. DISCUSSION OF FACT(S): The applicant requests, through counsel, an upgrade of his under other than honorable conditions discharge and a change of the re-entry and separation codes. The applicant's available record of service and the issues submitted with his application were carefully reviewed. The applicant's record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. However, the applicant's counsel provides evidence which 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 Chapter 10, AR 635-200, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and he indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veterans' benefits. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance, such that he should have been retained on Active Duty. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, and his post-service accomplishments, the Board can find that his complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service. The applicant's counsel contends the applicant's service was honorable and included combat tours and awards. The applicant's service accomplishments and the quality of his service prior to the incident that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. The applicant's counsel also contends the event that caused his discharge from the Army was an isolated incident. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. Moreover, records show the applicant's assigned RE Code of 4 is appropriate based on the authority and reason for his discharge. Therefore, there is no basis for changing the applicant's RE Code and the applicant is no longer eligible for reenlistment. The applicant's counsel further contends that even if the Board finds the applicant discharge of in lieu of trial by court-martial was proper, the applicant still should have received an honorable discharge. However, Army policy states that the separation authority may direct a general discharge if such is merited by the Soldiers overall record during the current enlistment, but a discharge under other than honorable conditions is normally considered appropriate. 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. 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. Applicant has been diagnosed with PTSD which, under Liberal Consideration, may mitigate the discharge. (2) Did the condition exist or experience occur during military service? Yes. Applicant's VA diagnosis of PTSD is service-connected, indicating that it occurred during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant's discharge packet contains no indication of what charges the applicant faced when he decided to accept a Chapter 10 discharge in lieu of court martial; the applicant contends it was solely the unauthorized wear of a Ranger Tab and associated upload of Ranger School orders to his AMHRR. Given this misconduct, and despite applying liberal consideration, the ADRB determined that the applicant's diagnosis of PTSD does not mitigate the fraudulent wearing of a Ranger tab or the fraudulent entry of a ranger course completion certificate into his military record. This is because PTSD does not prevent an individual from understanding the difference between right and wrong. Finally, because the charges against the applicant are not in the discharge packet in the AMHRR, the Board was unconvinced that this was the only misconduct leading to his discharge. Therefore, the Board cannot conclude that the applicant's condition and experience either excused or mitigated the applicant's voluntary request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Does the condition or experience outweigh the discharge? No. Despite applying liberal consideration, the ADRB determined that the applicant's diagnosis of PTSD does not outweigh the fraudulent wearing of a Ranger tab or the fraudulent entry of a ranger course completion certificate into his military record. Therefore, the Board could not conclude that any evidence of any condition or experience outweighed the applicant's voluntary request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial b. Response to Contentions: (1) The applicant's counsel contends the applicant's service was honorable and included combat tours and awards. The applicant's service accomplishments and the quality of his service prior to the incident that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments, but that does not excuse the offenses. (2) The applicant's counsel further contends that even if the Board finds the applicant discharge of in lieu of trial by court-martial was proper, the applicant still should have received an honorable discharge. However, Army policy states that the separation authority may direct a general discharge if such is merited by the Soldiers overall record during the current enlistment, but a discharge under other than honorable conditions is normally considered appropriate. c. The Board denied the request upon finding the separation was both proper and equitable. The majority of the Board determined that the documentation contained in the AMHRR, as well as evidence submitted by the applicant, and the available medical evidence did not support a finding that the applicant's discharge was improper or inequitable. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service because the Board was not convinced that the only misconduct was the wrongful wearing of a Ranger Tab and falsifying a course completion document in his records. Further, despite applying liberal consideration, falsifying records and unauthorized wear of a badge cannot be mitigated by the applicant's diagnosis of PTSD, because PTSD does not prevent understanding the difference between right and wrong. The ADRB found 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. The panel focused on lack of evidence, no basis for separation, lack of charge sheet and other evidence. (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 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 NA - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Reentry 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 AR20200008021 7