1. Applicant’s Name: a. Application Date: 21 September 2020 b. Date Received: 29 September 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, through counsel, an upgrade to honorable or general (under honorable conditions) along with a narrative reason, separation program designator (SPD) code, and reentry (RE) code change. The applicant’s counsel seeks relief contending, in effect, the applicant had honorable service and received multiple awards and promotions; the applicant’s struggles with post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI) were mitigating circumstances in the applicant’s misconduct; recent Department of Defense (DoD) guidelines constitutes a policy change which supports an upgrade of discharge characterization. The polices outlined in the recent DoD guidance make it clear the applicant’s PTSD and TBI must be weighed as mitigating factors, and the applicant’s TBI and PTSD diagnosis sufficiently outweighs the applicant’s misconduct when considered with existing facts and circumstances. b. Board Type and Decision: In a records review conducted on 26 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: 19 August 2015 c. Separation Facts: (1) DD Form 458 (Charge Sheet): Charge Sheet, dated 30 June 2015, reflects the applicant was charged with one specification of being absent without authority from on or about 12 October 2014 until on or about 16 October 2014; two specification of failing to obey a lawful order; one specification of make a false statement with intent to deceive; three specifications of stealing property of the U.S. Government; and four specifications of preparing vouchers for presentation for approval and payment which were false and fraudulent. (2) Legal Consultation Date: 19 August 2015 (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: 31 July 2015 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 July 2012 / 6 years b. Age at Enlistment / Education / GT Score: 17 / Associate Degree / 117 c. Highest Grade Achieved / MOS / Total Service: E-6 / 25U10, Signal Support System Specialist / 11 years, 2 months, 23 days d. Prior Service / Characterizations: RA, 27 May 2004 – 22 July 2012 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (7 December 2013 – 28 March 2014), (23 January 2013 – 17 May 2013), (15 March 2012 – 12 July 2012), (17 May 2011 – 1 September 2011); Iraq (26 November 2006 – 17 February 2008) f. Awards and Decorations: ACM-CS-2, BSM, JSCM, ARCOM-3, AAM-5, MUC, USA USAFPUC, AGCM-3, NDSM, GWOTSM, ICM-CS-2, NCOPDR-3, ASR, OSR-2, NATO MDL, Ranger Tab, CAB, Parachutist Badge, Expert Marksmanship Qualification Badge-Rifle Bar g. Performance Ratings: 1 January 2007 – 31 December 2007 / Among The Best 1 January 2008 – 10 May 2008 / Among The Best 11 May 2008 – 10 May 2009 / Among The Best 1 June 2009 – 10 March 2010 / Fully Capable 11 March 2010 – 10 March 2011 / Among The Best 11 March 2011 – 10 March 2012 / Among The Best 12 March 2012 – 11 March 2013 / Among The Best 12 March 2013 – 11 March 2014 / Among The Best 12 March 2014 – 28 February 2015 / Marginal h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 4 November 2009, reflects the applicant disobeyed a lawful general order by wrongfully used a government travel card for personal use between on or about 21 September 2009 and on or about 15 October 2009. The punishment consisted of forfeiture of $544 pay, suspended, to be automatically remitted if not vacated before 2 February 2010; extra duty for 14 days; restriction for 14 days, suspended, to be automatically remitted if not vacated before 2 February 2010; and an oral reprimand. A Report of Mental Status Evaluation, dated 5 August 2015, reflects the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. The applicant was diagnosed with other problems related to employment. The report reflects a negative screen for PTSD and TBI. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: The applicant provides a Department of Veteran Affairs (VA) Rating Decision, dated 8 June 2018, which reflects the applicant was granted service- connection for TBI with an evaluation of 10 percent, effective 16 August 2017, and 30 percent for post-traumatic migraine headaches. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: Legal Brief with 42 exhibits (245 total pages). 6. POST SERVICE ACCOMPLISHMENTS: The applicant earned an MBA from the University of Houston and started a consulting business. 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 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 is normally 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). (7) 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-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. 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, through counsel, an upgrade to honorable or general (under honorable conditions) along with a narrative reason, SPD code, and RE code change. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant’s counsel requests the narrative reason for the applicant’s discharge be changed. The applicant was separated under the provisions of Chapter 10, 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 635-5, Separation 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 or authority to be entered under this regulation. The applicant’s counsel requests the applicant’s SPD and RE codes be changed. Separation 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. 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.” Army Regulation 635-5, Separation Documents, governs the preparation of the DD Form 214 and dictates the entry of the 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 SPD code to be entered under this regulation. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of “KFS” will be assigned an RE Code of “4.” The applicant’s counsel contends the applicant had honorable service and received multiple awards and promotions. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant’s counsel contends the applicant’s struggles with PTSD and TBI were mitigating circumstances in the applicant’s misconduct and outweighs the misconduct. The applicant’s AMHRR is void of a mental health diagnosis. The AMHRR shows the applicant underwent a MSE on 5 August 2015, which reflects the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. The applicant was diagnosed with other problems related to employment. The report reflects a negative screen for PTSD and TBI. The MSE was considered by the separation authority. The applicant earned an MBA from the University of Houston and started a consulting business. 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. The applicant’s counsel contends recent DoD guidelines constitutes a policy change which supports an upgrade of discharge characterizations. The applicant’s counsel contends the polices outlined in the recent DoD guidance make it clear the applicant’s PTSD and TBI must be weighed as mitigating factors. 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: Post Traumatic Stress Disorder and Traumatic Brain Injury. (2) Did the condition exist or experience occur during military service? Yes. Applicant is service-connected for PTSD and TBI. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that AWOL and disobeying an order would be mitigated due to the nexus between trauma and avoidance/difficulty with authority. However, false official statements, stealing property, and preparing vouchers for payment which were false and fraudulent would not be. Even if considering the prior TBI diagnosis, the unmitigated misconduct reflects intact cognitive functioning as it requires multiple, conscious decisions and steps over time with attempts at evasion. (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 applicant’s PTSD and TBI do not outweigh the discharge. While the applicant’s PSTD and TBI do mitigate the applicant’s AWOL and disobeying a lawful order offenses, there is not medical mitigation for the applicant’s false statements made with intent to deceive, theft of property from the government, and preparation of false documents. b. Response to Contention(s): (1) The applicant’s counsel contends the applicant’s struggles with PTSD and TBI were mitigating circumstances in the applicant’s misconduct and outweighs the misconduct. The Board liberally considered this contention and determined that applicant’s PTSD and TBI do not outweigh the discharge. While the applicant’s PSTD and TBI do mitigate the applicant’s AWOL and disobeying a lawful order offenses, there is not medical mitigation for the applicant’s false statements made with intent to deceive, theft of property from the government, and preparation of false documents as this conduct intact cognitive functioning as it requires multiple, conscious decisions and steps over time with attempts at evasion. (2) The applicant’s counsel contends the applicant had honorable service and received multiple awards and promotions. The Board considered the totality of the applicant’s service record, including combat service as a Ranger and a Bronze Star Medal among other awards, 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. The applicant’s misconduct brought discredit on the Army and was prejudicial to good order and discipline. By making a false statement with intent to deceive, stealing property of the U.S. Government; and preparing vouchers for presentation for approval and payment which were false and fraudulent, the applicant diminished the quality of service below that warranting a discharge upgrade. (3) The applicant’s counsel contends recent DoD guidelines constitutes a policy change which supports an upgrade of discharge characterizations. The Board considered this contention and, applying liberal consideration per DoD guidance, did find partial mitigation for applicant’s misconduct. However, as discussed above, the applicant’s PTSD and TBI do not mitigate several of the applicant’s offenses. c. The Board denied the request upon finding the separation was both proper and equitable. However, the applicant may request a personal appearance hearing to address further 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 PTSD and TBI do not outweigh the discharge. While the applicant’s PSTD and TBI do mitigate the applicant’s AWOL and disobeying a lawful order offenses, there is not medical mitigation for the applicant’s false statements made with intent to deceive, theft of property from the government, and preparation of false documents as this conduct intact cognitive functioning as it requires multiple, conscious decisions and steps over time with attempts at evasion. The Board also considered the applicant's contention regarding good service, misconduct notwithstanding, and determined 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 for the same reasons, as the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: Legend: AWOL – Absent Without Leave AMHRR – Army Military Human Resource Record BCD – Bad Conduct Discharge BH – Behavioral Health CG – Company Grade Article 15 CID – Criminal Investigation Division ELS – Entry Level Status FG – Field Grade Article 15 GD – General Discharge HS – High School HD – Honorable Discharge IADT – Initial Active Duty Training MP – Military Police MST – Military Sexual Trauma N/A – Not applicable NCO – Noncommissioned Officer NIF – Not in File NOS – Not Otherwise Specified OAD – Ordered to Active Duty OBH (I) – Other Behavioral Health (Issues) OMPF – Official Military Personnel File PTSD – Post-Traumatic Stress Disorder RE – Re-entry SCM – Summary Court Martial SPCM – Special Court Martial SPD – Separation Program Designator TBI – Traumatic Brain Injury UNC – Uncharacterized Discharge UOTHC – Under Other Than Honorable Conditions VA – Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20200008962 1