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 under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the discharge should be upgraded because of medical issues. The applicant was discharged in lieu of trial by court-martial for disobeying an order not to leave the post after learning of the passing of the child. The applicant attended the funeral and returned without missing any duty. During the discharge proceedings, the applicant was receiving extensive mental health counseling for PTSD, grief, and anti-social personality disorder, and the applicant was not of sound mind. Because of how the commander was handling the loss of the applicant’s child and during the period the applicant was coping with the loss of the child and the inability to process the grief, the order was unbecoming of an officer and unlawful. The applicant was unable to defend oneself throughout the discharge proceedings. The applicant has been receiving treatment for the loss of a child for several years. Considering military service is a family tradition and if not for the commander’s lack of sympathy, the applicant would have gladly continued serving. b. Board Type and Decision: In a records review conducted on 15 June 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: 21 March 2003 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 11 March 2003, the applicant was charged with: Charge I: Violating Article 90, UCMJ, for disobeying a superior commissioned officer on 25 February 2003. Charge II: Violating Article 134, UCMJ, for: Specification 1: between 13 and 19 October 2002, wrongfully having sexual intercourse with SPC H. T., a person not the spouse. Specification 2: from 1 February to 6 March 2003, dishonorably failing to pay spousal support to T. K. W. in the sum of $450, due and payable on 1 February 2003. (2) Legal Consultation Date: 11 March 2003 (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: 13 March 2003 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 January 2001 / 6 years (The DD Form 214 reflects date entered Active Duty on 10 November 2000. The applicant’s enlistment document reflects date of enlistment as 17 January 2001.) b. Age at Enlistment / Education / GT Score: 20 / High School Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-3 / 91P10, X-Ray Specialist / 3 years, 6 months, 9 days d. Prior Service / Characterizations: USAR, 25 April 1997 – 21 June 1998 / NA IADT, 22 June 1998 – 28 August 1998 / UNC (Break in Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Three Developmental Counseling Forms for various acts of misconduct. FG Article 15, unexecuted and incomplete, for attempted assault upon SFC M. P. on 5 February 2003; failing to go at the time prescribed to the appointed place of duty on 9 February 2003; being disrespectful in language toward an NCO on two separate occasions on 5 February 2003; disobeying an NCO on two separation occasions on 5 February and 31 January 2003; making a false official statement on 5 February 2003; and communicating a threat to injure an NCO on 5 February 2003. FG Article 15 (incomplete), dated 5 February 2003, for making a false official statement on 9 January 2003, and wrongfully having sexual intercourse with SPC H. T., a person not the spouse between 13 and 19 October 2003. (Note, the second offense was a preferred charge against the applicant.) Memoranda for Record, dated 9 January, and 7 and 25 February 2003, describe in statements the events of ordering the applicant not to operate a POV until proof of insurance was verified, and disobeying an NCO on two occasions, communicating a threat, and disobeying an NCO. Charge sheet as described in previous paragraph 3c. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Forms 149 and 293. 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 honorable. The 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 contend the discharge should be upgraded because of medical issues and receiving extensive mental health counseling for PTSD, grief, and anti-social personality disorder. 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’s AMHRR contains no documentation of any behavioral health diagnosis. The AMHRR is void of a mental status evaluation. The applicant contends family issues, such as the loss of a child, 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 the commander’s order to not leave the post and because of lacking sympathy, the order was unbecoming of an officer and unlawful. 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 asserts PTSD, which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. Applicant also self-asserts grief and Antisocial Personality Disorder, neither of which are mitigating conditions. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant self-asserts having PTSD during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the applicant self-asserts having PTSD during military service, which is a potentially mitigating BH condition. However, there is no medical evidence to support applicant’s asserted PTSD. Applicant was not diagnosed in service with any BH conditions and is not diagnosed or service connected by the VA for any BH conditions. The applicant did not submit any other medical documentation to support his asserted PTSD. Due to the lack of medical evidence of applicant’s asserted PTSD, the asserted PTSD does not mitigate any of the misconduct that led to separation. Applicant also self-asserts grief and Antisocial Personality Disorder, neither of which are mitigating conditions. (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): (1) The applicant contend the discharge should be upgraded because of medical issues and receiving extensive mental health counseling for PTSD, grief, and anti-social personality disorder. The Board considered this contention and determined that due to the lack of medical evidence of applicant’s asserted PTSD, the misconduct that led to separation – disobeying a commissioned officer, adultery, and failure to pay spousal support – are not medically mitigated. (2) The applicant contends family issues, such as the loss of a child, 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 was not an acceptable response to dealing with family issues, thus the applicant was properly and equitably discharged. (3) The applicant contends the commander’s order to not leave the post and because of lacking sympathy, the order was unbecoming of an officer and unlawful. The Board considered the contention and found it non-persuasive during deliberations, as there is insufficient evidence of the applicant being given an unlawful order. The Board determined the assertion alone does not outweigh the nature of the applicant’s misconduct. 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 their 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 of all the evidence before the Board, there was insufficient evidence in the record or provided by the applicant, that the applicant’s asserted BH conditions of PTSD, grief, and APD existed during service, and insufficient evidence that they provided any mitigated for the basis for separation – disobeying a commissioned officer, adultery, and failure to pay spousal support. The Board found insufficient evidence of any arbitrary or capricious action taken by the Command. 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 UOTHC was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to HD. (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 AR20210001845 1