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 was inequitable and improper because of a lack of due process at the time of the discharge and insufficient evidence to justify the UOTH discharge. The discharge was the outcome of marital problems with the spouse, which began in 2013, followed by making the mistake of conversing with another NCO in the battalion. The conversation resulted in a sexual relationship with the NCO, which was discovered by the NCO’s spouse, prompting an investigation into the relationship. When the NCO’s spouse began taunting and following the applicant’s vehicle, the applicant chose to arm oneself, which resulted in a charge against the applicant. Another investigation ensued after the same spouse had another Soldier reported to the chain of command, an allegation the applicant was trying to have a relationship with the Soldier. Although the complaint, investigated by SHARP, was unfounded, the CSM decided to reopen the applicant’s case and added the complaint to the list of charges against the applicant. The applicant made some very bad decisions because of the mental state at the time. The applicant decided against pursuing the Article 15 proceedings and instead asked for a discharge in lieu of trial by a court-martial. The applicant was informed by legal counsel the battalion and brigade commanders supported a discharge with a general (under honorable conditions) characterization of service throughout the Chapter 10 process, but the post commander did not. Since the discharge, the applicant has struggled to make ends meet while working many temporary agency jobs and using the Post 9/11 GI Bill by enrolling in school to pursue studies in criminal justice. After months of working with the temp agency jobs and because of financial concerns for the family, the applicant accepted a contractor job in Kandahar, Afghanistan as an ammunition specialist for a year. Upon returning, the applicant was employed as a Material expeditor at the Fort Bliss ammunition supply point and was promoted to Lead expeditor. The applicant accepts full responsibility for the actions, but believes the punishment was too severe even though the applicant deserved to be punished for making a bad decision and causing hardship to the family. The applicant acknowledges the poor decision, which wrecked the family and career, was made from selfishness. The applicant struggles daily to regain the trust of the spouse and children. The applicant simply cannot afford the cost of a personal appearance after hearing an upgrade would be practically impossible without appearing in person before the Board. Despite being a terrible spouse, the applicant was a good Soldier. The UOTH discharge makes it very difficult to continue serving the country and supporting the family outside of the military, even though there are many options to do so. The applicant is 40 percent disabled and is receiving counseling for the depressed mood (rated 30 percent disability) to cope with the issues. The applicant further details the contentions in an allied self-authored statement provided with the application. b. Board Type and Decision: In a records review conducted on 22 June 2023, and by a 4-1 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: 14 March 2014 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): NIF (2) Legal Consultation Date: NIF (3) Basis for Separation: Pursuant to the applicant’s request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: NIF (5) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 March 2009 / 6 years b. Age at Enlistment / Education / GT Score: 27 / High School Graduate / 113 c. Highest Grade Achieved / MOS / Total Service: E-6 / 89B30, Ammunition Specialist / 13 years, 7 months, 18 days d. Prior Service / Characterizations: RA, 27 July 2000 – 19 September 2002 / HD RA, 20 September 2002 – 20 February 2006 / HD RA, 21 February 2006 – 15 March 2009 / HD e. Overseas Service / Combat Service: Alaska, SWA / Iraq (15 August 2005 – 27 November 2006; 21 September 2008 – 20 September 2009) f. Awards and Decorations: ICM-4CS, ARCOM, AAM-4, MUC, VUA, AGCM-3, NDSM, GWOTSM, ICM-4CS, NCOPDR-2, ASR, OSR-3 g. Performance Ratings: 1 September 2009 – 31 August 2010 / Among the Best 31 August 2010 – 30 August 2011 / Among the Best 31 August 2011 – 30 August 2012 / Fully Capable 31 August 2012 – 31 May 2013 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: The applicant’s Enlisted Record Brief (ERB), dated 17 March 2014, reflects the applicant was flagged for Involuntary Separation or Discharge (Field Initiated) (BA), effective 5 March 2014; Adverse Action (AA), effective 30 October 2013; was ineligible for reenlistment due to Pending Separation (9V). The Assignment Eligibility Availability code reflects the applicant was eligible for PCS reassignment. The applicant was reduced from E-6 to E-1 effective 4 March 2014. The applicant’s DD Form 214 reflects the applicant had 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: Disabilities document without an identification, reflects rated disabilities as 30 percent for an adjustment disorder with depressed mood and 10 percent for hypertension, a combined disability of 40 percent. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 with listed enclosures at Items No. 8 and 14. Additional Evidence: VA Rated Disabilities; Separation Orders; and DD Forms 214 and 214C. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is employed as a Material expeditor at the Fort Bliss ammunition supply point and was promoted to Lead expeditor. 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 are 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-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 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, would have 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 would have 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 the discharge was inequitable and improper because of a lack of due process at the time and insufficient evidence to justify the under other than honorable conditions discharge. The applicant’s available AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends despite being a horrible spouse, the applicant was a good Soldier, who served two combat tours. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends struggling to make ends meet while working many temporary agency jobs and being limited to the many options available to continue serving the country. The Board does not grant relief to gain employment or enhance employment opportunities. The applicant contends having served a year in Afghanistan as an ammunition specialist and being employed as a Lead expeditor for the Fort Bliss ammunition supply point. 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 contends the Veterans Administration has granted the applicant service connection for medical conditions the applicant suffered while on active duty. The applicant provided a document entitled, “Disabilities” without an identification, which reflects service-connected disabilities for an adjustment disorder with depressed mood rated at 30 percent and hypertension rated at 10 percent. The available medical evidence in the applicant’s AMHRR is void of any indication the applicant was suffering from a disabling medical or mental condition during the discharge processing, warranting separation processing through medical channels. The third-party statements provided with the application speak highly of the applicant’s performance and character as a Soldier. 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: Adjustment Disorder, Major Depressive Disorder. (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed in service with an adjustment disorder, and the VA has service connected the applicant for Major Depressive Disorder. Service connection establishes that applicant's Major Depressive Disorder existed 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 there is evidence of potentially mitigating BH conditions. Applicant was diagnosed in service with an adjustment disorder, and the VA has service connected the applicant for Major Depressive Disorder. However, the basis for applicant’s separation is not contained in the file, so medical mitigation cannot be determined. (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 Adjustment Disorder, Major Depressive Disorder outweighed the basis for applicant’s separation – the basis for applicant’s separation is not contained in the file, so medical mitigation cannot be determined. b. Response to Contention(s): (1) The applicant contends the discharge was inequitable and improper because of a lack of due process at the time and insufficient evidence to justify the under other than honorable conditions discharge. The Board considered this contention and the applicant’s assertion of inequity, however the Board determined that there is no evidence of said inequity in official records, and the applicant did not provide supporting documentation to overcome the presumption of regularity in the discharge process. The Board concluded that the merit to the contention cannot be determined because the basis for separation not being known. Therefore, no change is warranted. (2) The applicant contends despite being a horrible spouse, the applicant was a good Soldier, who served two combat tours. 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 merit to the contention cannot be determined because the basis for separation not being known. (3) The applicant contends struggling to make ends meet while working many temporary agency jobs and being limited to the many options available to continue serving the country. The Board considered this contention the applicant’s assertion of struggling to make ends meet while working many temporary agency jobs however, the Board does not grant relief to gain employment or enhance employment opportunities. (4) The applicant contends having served a year in Afghanistan as an ammunition specialist and being employed as a Lead expeditor for the Fort Bliss ammunition supply point. The Board considered the totality of the applicant’s service record to include length, quality, and combat service, but if there was an inequity or impropriety to consider it cannot be determined due to the basis for separation not being known. (5) The applicant contends the Veterans Administration has granted the applicant service connection for medical conditions the applicant suffered while on active duty. The ADRB is not bound by U.S. Department of Veterans Affairs (VA) decisions, nor do VA decisions have any bearing on the decisions of the ADRB. Decisions reached by the U.S. Department of Veterans Affairs (VA) to determine if former Service member’s rate certain VA benefits do not affect previous discharge decisions made by the Department of the Army. The criteria used by the VA in determining whether a former Service member is eligible for benefits are different than the Army when determining a member’s discharge. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because there was insufficient evidence provided by the applicant both on the complete circumstances surrounding the discharge and evidence of an impropriety or inequity in the discharge process or results. 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. (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: b. Issue a New DD-214 / Separation Order: No c. Change Characterization to: No Change d. Change Reason / SPD code to: No Change e. Change RE Code to: No Change f. 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 AR20210001851 1