1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 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. The applicant seeks relief contending, in effect, prior to the discharge, the applicant did not obtain adequate counseling and therapy. The applicant had a nervous breakdown, had no mental health treatment, and the career was cut short because of lacking information. b. Board Type and Decision: In a records review conducted on 1 August 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: 21 September 2005 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 31 August 2005, the applicant was charged with: Charge I: Violation of the UCMJ, Article 86, for being AWOL: Specification 1: from 26 July to 1 August 2005, and Specification 2: from 4 August 2005 to 11 August 2005. Charge II: Violating Article 95, UCMJ, for fleeing apprehension on 26 August 2005. Charge III: Violation of the UCMJ, Article 112a, for wrongfully using: Specification 1: marijuana, between 20 June and 20 July 2005, and Specification 2: cocaine, between 15 and 20 July 2005. Charge IV: Violation of the UCMJ, Article 121, committing larceny of a knife of some value, property of J. K.C., on 26 August 2005. (2) Legal Consultation Date: 8 September 2005 (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: 12 September 2005 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 June 2002 / 4 years b. Age at Enlistment / Education / GT Score: 19 / High School Graduate / 89 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M10, Motor Transport Operator / 5 years, 27 days d. Prior Service / Characterizations: USAR, 7 July 2000 – 30 May 2001 / NIF IADT, 31 May 2001 – 21 September 2001 / NIF USAR, 22 September 2001 – 27 June 2002 / NIF e. Overseas Service / Combat Service: SWA / Kuwait-Iraq (30 April 2004 – 5 May 2005) f. Awards and Decorations: AAM, ICM, ARCOM, GWOTSM, NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Thirteen Developmental Counseling Forms for various acts of misconduct. CG Article 15, dated 23 November 2004, for being derelict in performance of duty on 30 September 2004, disobeying an NCO on 28 September 2004, and failing to go at the time prescribed to the appointed place of duty on 3 August 2004. The punishment consisted of a reduction to E-3 and forfeiture of $349 pay. Electronic Copy of DD Form 2624, dated 28 March 2005, reflects the applicant tested positive for COC 35753 (cocaine) and THC 107 (marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 9 March 2005. State of Tennessee Case Docket History, dated 13 April 2005, reflects the applicant was charged with domestic assault on 15 March 2005. FG Article 15, dated 8 June 2005, for wrongfully using marijuana (between 7 February and 9 March 2005); wrongfully using cocaine (between 1 and 9 March 2005); being AWOL on 8 April 2005 and remaining absent until 19 April 2005; and on 28 April and 1 May 2005, failing to go at the time prescribed to the appointed place of duty. The punishment consisted of a reduction to E-1 and extra duty for 45 days. DD Form 2624, undated, reflects the applicant tested positive for COC (cocaine) and THC (marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 20 July 2005. Eleven Personnel Action forms reflect the applicant’s duty status changed as follows: From “Confined by Civil Authorities (CCA),” to “Present for Duty (PDY),” effective 1 April 2005; From “Present for Duty (PDY),” to “Absent Without Leave (AWOL),” effective 8 April 2005; From “AWOL” to “PDY,” effective 19 April 2005; From “PDY” to “AWOL,” effective 26 July 2005; From “AWOL” to “PDY,” effective 1 August 2005; From “PDY” to “AWOL,” effective 4 August 2005; From “AWOL” to “PDY,” effective 11 August 2005/12 August 2005; From “PDY” to “CCA,” effective 14 August 2005; and From “CCA” to “PDY,” 17 August 2005. CID Report of Investigation - Final, dated 24 August 2005, reflects an investigation established probable cause to believe the applicant committed the offense of Wrongful Possession of Cocaine, Wrongful Use of Cocaine, Wrongful Possession of Marijuana and Wrongful Use of Marijuana, when the applicant submitted a urine specimen on 9 March 2005, during the conduct of a unit urinalysis test, which subsequently tested positive for Cocaine and Marijuana. Military Police Blotter, undated, reflects on 26 August 2005, the applicant was apprehended for failure to obey the order of an MP; wrongful destruction of government property; and larceny of private property. Charge sheet as described in previous paragraph 3c. Lost Time / Mode of Return: 48 days: CCA, 14 March 2005 – 31 March 2005 / Released from Civil Confinement AWOL, 8 April 2005 – 18 April 2005 / Surrendered to Military Authorities AWOL, 26 July 2005 – 10 August 2005 / Surrendered to Military Authorities CCA, 14 August 2005 – 16 August 2005 / Release from Civil Confinement j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149. 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) 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. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The evidence in the applicant’s Army Military Human Resource Record (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 general (under honorable conditions) discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends not receiving adequate counseling and therapy. The evidence of record shows the command attempted to assist the applicant in performing and conducting to Army standards by providing counseling and the imposition of non-judicial punishment. Army Regulation 600-85, paragraph 7-3 entitled voluntary (self) identification and referral, states voluntary (self) ID is the most desirable method of identifying substance use disorder. The individual whose performance, social conduct, interpersonal relations, or health becomes impaired because of these problems has the personal obligation to seek help. Soldiers seeking self-referral for problematic substance use may access services through BH services for a SUD evaluation. The Limited Use Policy exists to encourage Soldiers to proactively seek help. The applicant contends having a nervous breakdown and not receiving mental health treatment. The applicant’s AMHRR contains no documentation of any behavioral health diagnosis. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention the discharge resulted from any medical condition. The applicant contends the career was cut short because of lacking knowledge. Army Regulation 635-200, paragraph 1-17d(2), entitled counseling and rehabilitative requirements, states the separation authority may waive the rehabilitative requirements in circumstances where common sense and sound judgment indicate such a transfer will serve no useful purpose or produce a quality Soldier. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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/experiences: Post Traumatic Stress Disorder, Major Depressive Disorder, possible Traumatic Brain Injury. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant is service connected for PTSD with diagnosis of Major Depressive Disorder also relevant to the period of active service, with additional evidence of possible 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 applicant is service connected for PTSD and has evidence of major depressive disorder at the time of service. There is reference to psychotic features in service medical records although no specifics are outlined, and the presence of psychotic features would not necessarily result in the lack of ability to differentiate right from wrong and adhere to the right. There is also reference to possible TBI in VA records although there is no evidence that it was of such severity as to impair cognition, behavior, and judgment to an extent to be further considered for mitigation. As such, this medical opine will consider the presence of PTSD and major depressive disorder as potentially mitigation conditions. The presence of PTSD and major depression mitigate some of the behavior leading to discharge. Specific to the basis of separation, AWOL is an avoidance behavior associated with the natural history and sequelae of PTSD and is therefore mitigated; illicit substance use (cocaine and marijuana) is mitigated due to the relationship between self- medication of symptoms and both major depression and PTSD. However, neither PTSD nor major depression of the nature described during the applicant’s period of service result in the inability to differentiate right from wrong and adhere to the right, therefore there is no mitigation of fleeing apprehension and committing larceny. (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 the available evidence did not support a conclusion that the applicant’s Post Traumatic Stress Disorder, Major Depressive Disorder, and Traumatic Brain Injury outweighed the applicant’s medically unmitigated offenses of fleeing apprehension and committing larceny. b. Response to Contention(s): (1) The applicant contends having a nervous breakdown and not receiving mental health treatment. The Board liberally considered this contention but determined that the available evidence did not support a conclusion that the applicant’s Post Traumatic Stress Disorder, Major Depressive Disorder, and Traumatic Brain Injury outweighed the applicant’s medically unmitigated offenses of fleeing apprehension and committing larceny. Therefore, a discharge upgrade is not warranted. (2) The applicant contends not receiving adequate counseling and treatment. The Board liberally considered this contention but determined that the available evidence did not support a conclusion that the applicant’s Post Traumatic Stress Disorder, Major Depressive Disorder, and Traumatic Brain Injury outweighed the applicant’s medically unmitigated offenses of fleeing apprehension and committing larceny. Therefore, a discharge upgrade is not warranted. (3) The applicant contends their career was cut short because of lacking knowledge. The Board considered this contention unpersuasive during deliberations as the applicant voluntarily chose to be discharged in lieu of trial by court-martial. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant has exhausted the appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 to all the evidence before the Board, the applicant’s Post Traumatic Stress Disorder, Major Depressive Disorder, and Traumatic Brain Injury were not found to outweigh the applicant’s medically unmitigated offenses of fleeing apprehension and committing larceny. The Board also considered the applicant's contention a lack of knowledge and mental health treatment 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 General 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 AR20210001749 1