1. Applicant’s Name: a. Application Date: 27 May 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 under other than honorable conditions. The applicant requests an upgrade to general (under honorable conditions). The applicant seeks relief contending, in effect, instead of continuing with the court-martial, the applicant accepted the UOTH discharge because the applicant and the spouse were having difficult times with the relationship. Fellow Solders and the spouse committed adultery and the spouse became pregnant from the incident. The applicant claims PTSD medical issue was related to current application, but not considered in the previous ADRB records review decision, which was denied. The applicant did not think of doing anything else as a VA claim is pending. b. Board Type and Decision: In a records review conducted on 12 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 / Under Other Than Honorable Conditions b. Date of Discharge: 29 February 2012 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): NIF (2) Legal Consultation Date: 30 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: NIF (5) Separation Decision Date / Characterization: 10 February 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 April 2008 / 5 years b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / 94 c. Highest Grade Achieved / MOS / Total Service: E-4 / 31B10, Military Police / 3 years, 10 months, 21 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (28 February 2010 – 15 February 2011) f. Awards and Decorations: ARCOM, NDSM, GWOTSM, ICM-CS, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: NIF The applicant’s Enlisted Record Brief (ERB), dated 14 February 2012, reflects the applicant was flagged for Army Body Composition Program (KA), effective 9 January 2012; Adverse Action (AA), effective 17 December 2011; Involuntary Separation or Discharge (Field Initiated) (BA), effective 17 August 2011; and was ineligible for reenlistment due to Pending Separation (9V). The Assignment Eligibility Availability code reflects the applicant eligible for PCS reassignment, subject to normal PCS TOS restrictions. There was no termination date. 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 not 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: Behavioral Health Center medical records reflect progress notes and treatment for the diagnoses of “Current severe episode of major depressive disorder with psychotic features, unspecified whether recurrent”; “Acute post-traumatic stress disorder”; and “Post-traumatic stress disorder, chronic – Primary.” (2) AMHRR Listed: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; DD Form 214; third-party statement; ADRB Records Review (AR20130005099; and Behavioral Health Center medical records. 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) sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember’s date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10, United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-7c states Under Other Than Honorable Conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. (6) Paragraph 10-8a stipulates a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. (See chap 3, sec II.) 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 general (under honorable conditions). The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant’s 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 not 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 Under Other Than Honorable Conditions. The available 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 family issues, such as spouse committing adultery, 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 being diagnosed with PTSD as relative to the application. The applicant provided several medical documents indicating diagnoses of severe episode of major depressive disorder with psychotic features, unspecified whether recurrent”; “Acute post- traumatic stress disorder”; and “Post-traumatic stress disorder, chronic – Primary.” The AMHRR is void of any medical diagnosis. The applicant contends a VA claim is pending. Eligibility for veterans’ benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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: Major Depressive Disorder (MDD); Anxiety Disorder; Post Traumatic Stress Disorder. (2) Did the condition exist or experience occur during military service? Yes. The applicant held in-service diagnoses of Major Depressive Disorder (MDD) and Anxiety Disorder, and has a post-service diagnosis of PTSD (3) Does the condition or experience actually excuse or mitigate the discharge? No. After applying liberal consideration, the Board’s Medical Advisor determined that the applicant’s MDD, Anxiety Disorder or PTSD could mitigate the applicant’s discharge, however, the Board Medical Advisor was unable to provide a medical opine on whether the applicant’s MDD, Anxiety Disorder or PTSD actually mitigates the applicant’s discharge because the applicant’s official records do not contain the facts and circumstances surrounding the applicant’s discharge and the applicant did not provide any evidence of the basis of the applicant’s separation. Without knowing the facts and circumstances relating to the applicant’s discharge, the Board Medical Advisor is unable to determine if the applicant’s MDD, Anxiety Disorder or PTSD mitigates the applicant’s discharge. (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 MDD, Anxiety Disorder, or PTSD could outweigh the applicant’s discharge, the Board was unable to determine whether the applicant’s MDD, Anxiety Disorder, or PTSD actually outweighed the applicant’s discharge without the Board Medical Advisor determination on medical mitigation. Without knowing the facts and circumstances relating to the applicant’s discharge, the Board is unable to determine if the applicant’s MDD, Anxiety Disorder, or PTSD outweighs the applicant’s discharge. b. Response to Contention(s): (1) The applicant contends being diagnosed with PTSD as relative to the application. The Board considered this contention and, after applying liberal consideration determined that while the applicant’s MDD, Anxiety Disorder, or PTSD could outweigh the applicant’s discharge, the Board was unable to determine whether the applicant’s PTSD actually outweighed the applicant’s discharge without the Board Medical Advisor determination on medical mitigation. Without knowing the facts and circumstances relating to the applicant’s discharge, the Board is unable to determine if the applicant’s MDD, Anxiety Disorder, or PTSD outweighs the applicant’s discharge. Therefore, the Board deemed that a discharge upgrade is not warranted at this time. (2) The applicant contends family issues, such as spouse committing adultery, 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, thus the applicant was properly and equitably discharged (3) The applicant contends a VA claim is pending. 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 pending VA claim is not cause for a discharge upgrade at this time. c. The Board denied the request upon finding the separation was both proper and equitable. 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 Board was unable to determine whether the applicant’s MDD, Anxiety Disorder, or PTSD actually outweighed the applicant’s discharge without the Board Medical Advisor determination on medical mitigation. Without knowing the facts and circumstances relating to the applicant’s discharge, the Board is unable to determine if the applicant’s MDD, Anxiety Disorder, or PTSD outweighs the applicant’s discharge. The Board also considered the applicant's contention regarding spousal infidelity and found that 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 General discharge was proper and equitable as the applicant’s misconduct fell below that level of 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 AR20200008246 1