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, being out of the closet as a homosexual. The applicant was depressed and began having Bipolar tendencies. The applicant believes the applicant was persecuted and pushed out of the service in the easiest way possible. As a gay person, the applicant believes the applicant was humiliated by the Army, called names by the peers, and the chain of command made fun of the applicant because of the mental disorder which developed while the applicant was assigned in Korea. The applicant believes the discharge was based on the applicant’s sexual orientation. The record shows First Sergeant M. M. was discharged after the applicant was discharged. Sergeant T. G. committed suicide. b. Board Type and Decision: In a records review conducted on 9 May 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: 18 July 2008 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 21 June 2008, the applicant was charged with: Charge I: Violating Article 91, UCMJ: Specification 1: On 21 June 2008, willfully disobey a lawful order from Staff Sergeant (SSG) H., a noncommissioned officer, to get up and go home. Specification 2: On 21 June 2008, was disrespectful in language toward First Sergeant (1SG) M. B., a noncommissioned officer, by saying “Go to hell!” and “Fuck off.” Charge II: Violating Article 108, UCMJ, The Specification: On 21 June 2008, willfully damage by kicking the wall and by hitting computer equipment and wall decorations of a value of some amount, military property. Charge III: Violating Article 128, UCMJ: Specification 1: On 21 June 2008, unlawfully strike M. J. on the shoulder and chest with the open hand. Specification 2: On 21 June 2008, assault J. E. by pouring water on J. E. Specification 3: On 21 June 2008, unlawfully strike Private E-2 (PV2) T. D. on the knee by kicking PV2 T. D. Charge IV: Violating Article 134, UCMJ: Specification 1: On 21 June 2008, was drunk and disorderly. Specification 2: On 21 June 2008, wrongfully communicate J. E. a threat to injure J. E. by having “friends take care of your old fat white ass.” (2) Legal Consultation Date: 26 June 2008 (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: 9 July 2008 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 April 2007 / NIF b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 109 c. Highest Grade Achieved / MOS / Total Service: E-3 / 42A10, Human Resources Specialist / 1 year, 3 months, 2 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: NDSM, GWOTSM, KDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge Sheet as described in previous paragraph 3c. Alcohol Incident Report, dated 19 May 2008, reflects the applicant was involved and an alcohol related incident and was apprehended by the Provost Marshall’s Office. The applicant submitted a breath chemical test which resulted in .108 blood alcohol content. Report of Result of Trial reflects the applicant was tried in a Summary Court-Martial on 28 May 2008. The applicant was charged with 16 specifications. The summary of offenses, pleas, and findings: Violation of Article 86, UCMJ: On 3 March 2008, fail to go at the time prescribed, to wit: work call; guilty inconsistent with the plea; On 14 March 2008 fail to go at the time prescribed, to wit: PT formation; guilty, inconsistent with the plea; On 14 March 2008 fail to go at the time prescribed, to wit: work call; guilty, inconsistent with the plea; On 19 March 2008, fail to go at the time prescribed, to wit: PT formation; guilty, inconsistent with the plea; On 19 March 2008, fail to go at the time prescribed, to wit: work call; guilty, inconsistent with the plea; and On 2 March 2008, went absent without leave until 7 May 2008; guilty, inconsistent with the plea. Violation of Article 89, UCMJ: On divers occasions behave with disrespect between 12 April and 17 May 2008; dismissed. Violation of Article 91, UCMJ: On 11 April 2008, willfully disobey a lawful order from SSG T., a noncommissioned officer, to return to the office; guilty, inconsistent with plea; On 11 April 2008, willfully disobey a lawful order from Sergeant First Class K, an NCO; not guilty, consistent with plea; and On 11 April 2008, was disrespectful in language toward 1SG M., an NCO, by calling the 1SG, M; dismissed. Violation of Article 92, UCMJ: On 18 May 2008, violate a lawful general regulation, by wrongfully failing to be on military installation, in a private residence, or in the place of lodging during curfew hours; guilty, inconsistent with the plea; On 18 May 2008, violate a lawful general regulation, by wrongfully not identifying oneself to the Korean National Police and Courtesy Patrol when asked if the applicant was a military service member; guilty, inconsistent with the plea; and On 11 April 2008, was derelict in the performance of the duties by negligently failing to secure the stock and failing to attain the appropriate balance in the stock; not guilty, consistent with plea. Violation of Article 107, UCMJ: On 18 May 2008, with the intent to deceive, make to the Korean National Police, a false official statement, to wit: “I am not a military person”; guilty, inconsistent with plea. Violation of Article 108, UCMJ: On 18 May 2008, willfully damage by kicking the wall and slamming furniture of a value of some amount, military property of the United States; guilty, inconsistent with the plea. Violation of Article 128, UCMJ: On 18 May 2008, assault SGT B. and SGT T. by spitting on SGT B. and SGT T.; guilty, inconsistent with plea. Sentence: Reduction to E-1; forfeiture $1,058 pay; and confinement for 30 days. Numerous Developmental Counseling Forms, for, but not limited to: missing movement; dereliction of duties at the post office; disrespect to NCOs; failure to obey order or regulation; revocation of off post privileges; and assault. 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 Form 149; Preparation Counseling Checklist; and Servicemembers’ Group Life Election and Certificate. 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.) (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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes. RE-4 Applies to: Person separated from last period of service with a nonwaivable 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 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 under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 10, AR 635-200, 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 635-8, Separation Processing and 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 to be entered under this regulation. The applicant contends depression and Bipolar Disorder affected behavior which ultimately led to discharge. 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 AMHRR is void of a mental status evaluation. The applicant contends harassment and discrimination by members of the chain of command for being a homosexual. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. 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: the applicant was diagnosed with adjustment disorder has asserted depression and "bipolar tendencies," such assertions of behavioral conditions may be sufficient evidence to establish a condition that may mitigate or excuse the applicant’s discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant has asserted presence of mitigating behavioral health conditions and harassment due to sexual orientation. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board Medical Advisor applied liberal consideration and opined that the applicant’s asserted depression and bipolar symptoms could mitigate some of the applicant’s offenses. Bipolar disorder, in an actively manic state, may mitigate disobeying a lawful order of the nature described in the record, disrespect to an NCO, and acting out resulting in minor damage to property. Bipolar disorder would not mitigate assaultive behaviors toward others or communicating a threat. Depressive disorder typically mitigates minor drunk and disorderly behavior. However, there is insufficient evidence in applicant’s official records or provided by the applicant to support that the applicant was diagnosed or treated for either depression or bipolar disorder. The applicant’s official record reflects that the applicant was diagnosed with adjustment disorder, which does not mitigate the applicant’s offenses as adjustment disorder is a temporary condition. Without additional medical evidence, the Board Medical Advisor is unable to determine whether the applicant was experiencing a mitigating behavioral health condition. (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 and asserted depression, and bipolar tendencies outweighed the basis for applicant’s separation – damaging property, assault, and communicating a threat – for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention and determined the applicant’s narrative reason for discharge does not warrant a change. The applicant’s misconduct of damaging property, assault, and communicating a threat does not warrant a discharge as the applicant’s narrative reason appropriately reflects the reason for the applicant’s discharge and there is insufficient evidence in the applicant’s official record or provided by the applicant to warrant a change. (2) The applicant contends Depression and Bipolar Disorder affected behavior which ultimately led to discharge. The Board considered this contention and determined that there is insufficient evidence in applicant’s official records or provided by the applicant to support that the applicant was diagnosed or treated for either Depression or Bipolar disorder. Further, while the applicant’s official record reflects the applicant was diagnosed with Adjustment Disorder, there is insufficient evidence to determine if this condition resulted in a mitigating condition. Without additional medical evidence, the Board determined that the applicant’s discharge is proper and equitable. (3) The applicant contends harassment and discrimination by members of the chain of command for being a homosexual. The Board considered this contention and determined there is insufficient evidence in the applicant’s official record or provided by the applciant to support this contention. However, the Board liberally considered applicant’s assertion of harassment and discrimination by the chain of command for being homosexual and determined this does not mitigate or excuse applicant’s damaging property, assault, communicating a threat disobeying orders, disrepect, and drunk and disroderly basis for separation. 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, despite applying liberal consideration of all the evidence, the applicant Adjustment Disorder and asserted Bipolar and Depression do not medically mitigation the applicant’s misconduct (be specific). The Board also considered the applicant’s contention regarding command harassment based on the applicant’s sexual orientation but found insufficient evidence to warrant a change. Finally, the Board considered the totality of the applicant’s record, including the applicant’s asserted BH conditions and Command harassment but found insufficient evidence to grant relief. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, 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 AR20210001975 1