1. Applicant’s Name: a. Application Date: 2 June 2020 b. Date Received: 2 June 2020 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 general (under honorable conditions). The applicant requests an upgrade to honorable and a narrative reason change. The applicant seeks relief contending, in effect, the entire record of service should be considered because of having served for more than ten years of active duty, four years in the Marine Corps and six years in the Army with good conduct medal, two overseas tours, achieving three meritorious promotions, and obtaining many medals. The applicant served as lead instructor at the Military Police Academy; received special recognition during a tour in Turkey from the Air Force NATO Commander; was selected above the peers to lead the training and certification of all new Military Police working patrol duty at Fort Carson; was consistently sought after by leadership for additional duties involving the improvement and betterment of Soldiers, including a fitness program for non-compliant Soldiers; and was a Certified Combative Instructor and Field Vehicle Road Test Instructor for Soldiers in the motor pool. The applicant was never considered an average or below average Marine or Soldier. The discharge was a result of a single incident involving disobedience of an order (no contact with one of the Soldiers), given unlawfully and with malice. The applicant was battling personal issues involving a custody dispute with the ex-spouse because of the health, welfare, and safety of the children which consumed the applicant’s focus. During the isolated incident, the applicant was offered the choice between a Court Martial for the incident or receive a General Discharge-Under Honorable Conditions and leave the service. The applicant elected to leave the military and focus on the well-being of the children. The applicant has since obtained full custody of the children and is working on a bachelor’s degree in Secondary Education and History, and on obtaining a civilian Law Enforcement certification; however, the current discharge inhibits the certification and does not permit taking the Peace Officers Standards and Training (POST) test and become certified. The applicant requests a full review of the career for an upgrade and a change to the narrative reason to read “Completion of Active Service,” because the current discharge does not encompass the complete 72 months of service with no other adverse action. The applicant further details the contentions in an allied self-authored statement provided with the application. b. Board Type and Decision: In a records review conducted on 19 April 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 / General (Under Honorable Conditions) b. Date of Discharge: 13 August 2012 c. Separation Facts: (1) Date and Charges Preferred (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: NIF (5) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 March 2006 / 6 years (Any extension or reenlistment NIF) b. Age at Enlistment / Education / GT Score: 25 / High School Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-5 / 31B20, Military Police / 12 years, 4 months, 26 days d. Prior Service / Characterizations: DEP, 18 March 2000 – 1 April 2000 / NA USMC, 2 April 2000 – 1 April 2004 / HD USMCRCG, 2 April 2004 – 20 March 2006 / NIF e. Overseas Service / Combat Service: Germany, SWA / Iraq (1 September 2007 – 30 November 2008) f. Awards and Decorations: JSCM, AAM-2, MUC, AGCM, NDSM, GWOTSM, ICM-CS, NCOPDR, ASR, OSR-2 The applicant’s AMHRR reflects award of an ARCOM, however, the award is not reflected on the DD Form 214. g. Performance Ratings: 1 March 2008 – 31 January 2009 / Among the Best 1 February 2009 – 31 January 2010 / Among the Best 1 February 2010 – 25 October 2010 / Among the Best 26 October 2010 – 3 April 2011 / Among the Best 4 April 2011 – 21 March 2012 / NIF 22 March 2012 – 13 August 2012 / Fully Capable Service School Academic Evaluation Report, dated 12 June 2009, reflects the applicant achieved the course standards for the Army Basic Instructor Service School Academic Evaluation Report, dated 21 August 2009, reflects the applicant exceeded course standards for the Warrior Leader Course and was the Distinguished Honor Graduate. h. Disciplinary Action(s) / Evidentiary Record: NIF The applicant’s DD Form 214 reflects the applicant had not completed the first full term of service. The applicant was discharged under the authority of AR 635-200, Chapter 10, with a narrative reason of In Lieu of Trial by Court-Martial. The DD Form 214 was authenticated with the applicant’s electronic signature. The applicant had no time lost. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 with listed attachments and a self-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is working on a bachelor’s degree in Secondary Education and History, and on obtaining a civilian Law Enforcement certification. 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) 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. (5) 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.) (6) 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 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 and a narrative reason change. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant’s Army Military Human Resources Record (AMHRR) is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. The applicant’s AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s electronic signature. The applicant’s DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 10, by reason of In Lieu of Trial by Court-Martial, with a characterization of service of General (Under Honorable Conditions). The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 10, AR 635-200, with a general (under 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 good service with a good conduct medal, two overseas tours, achieving three meritorious promotions and obtaining many medals. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends the discharge was the result of a single incident of disobeying an order, given unlawfully and with malice. Army Regulation 635-200, paragraph 3-5, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends battling personal issues involving a custody dispute with the ex-spouse affected behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends having obtained full custody of the children and is working on a bachelor’s degree in Secondary Education and History, and on obtaining a civilian Law Enforcement certification. 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 diagnosis: The applicant held an in- service diagnosis of Adjustment Disorder. (2) Did the condition exist or experience occur during military service? Yes. The applicant held an in-service diagnosis of Adjustment Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that mitigation cannot be determined without the basis for separation. However, even if the basis was available, an Adjustment Disorder is not a condition typically mitigating. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that while the applicant’s asserted Adjustment Disorder could outweigh the applicant’s basis of separation, the Board could not determine whether the applicant’s Adjustment Disorder actually outweighs the applicant’s basis of separation without the Board Medical Advisor determination on medical mitigation. Without additional medical evidence, the Board is unable to determine if the applicant’s Adjustment Disorder outweighs the applicant’s discharge. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention and that while the applicant’s asserted Adjustment Disorder could outweigh the applicant’s basis of separation, the Board could not determine whether the applicant’s Adjustment Disorder actually outweighs the applicant’s basis of separation without the Board Medical Advisor determination on medical mitigation. Without additional medical evidence, the Board is unable to determine if the applicant’s Adjustment Disorder outweighs the applicant’s discharge. The applicant was separated because the applicant requested to be discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial and the convening authority approved that request. The applicant did not provide the Board with evidence supporting a change to the narrative reason. (2) The applicant contends good service with a good conduct medal, two overseas tours, achieving three meritorious promotions and obtaining many recognitions. 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, the applicant diminished the quality of service below that meriting either a general or honorable discharge at the time of separation. (3) The applicant contends the discharge was the result of a single incident of disobeying an order, given unlawfully and with malice. The Board considered this contention but found insufficient evidence in the applicant’s AMHRR or applicant-provided evidence to support this contention. Therefore, the Board found that the applicant was properly and equitably discharged. (4) The applicant contends battling personal issues involving a custody dispute with the ex-spouse affected behavior and ultimately caused the discharge. The Board considered this contention, but determined that the Army has many legitimate avenues available to service members requesting assistance with family 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 misconduct is not an acceptable response to dealing with family issues, thus the applicant was properly and equitably discharged. (5) The applicant contends having obtained full custody of the children and is working on a bachelor’s degree in Secondary Education and History, and on obtaining a civilian Law Enforcement certification. The Board considered this contention but does not grant relief to gain employment or enhance employment opportunities. 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 court-martial offense. The Board also considered the applicant's contentions regarding family issues and the misconduct being an isolated incident and found that the totality of the applicant's record does not warrant a discharge upgrade. 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. Therefore, the applicant’s Under Other Than Honorable Conditions discharge was proper and equitable as the applicant’s conduct fell below that level of satisfactory service warranting a General discharge or meritorious service warranted for an upgrade to Honorable discharge. (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 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 AR20200008191 1