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 improper at the time because there was no diagnosis of impulse control, depression, or bipolar I disorder while the applicant was on active duty from 1998 to 2005. The new diagnosis of post-traumatic stress disorder (PTSD) has been added as there were three or more PTSD symptoms present during the applicant’s service. A medical professional indicated PTSD, bipolar disorder, and impulse control led to the applicant’s behavior and the applicant should have been discharged for medical reasons. The medical conditions are the reasons the applicant was unable to control the behavior. b. Board Type and Decision: In a records review conducted on 1 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: 14 July 2005 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: 9 February 2001 / 4 years / The AMHRR is void of any enlistment contract retaining the applicant on active duty after the most recent enlistment period. b. Age at Enlistment / Education / GT Score: 42 / HS Graduate / 106 c. Highest Grade Achieved / MOS / Total Service: E-7 / 79R40, Recruiter / 28 years, 3 months, 19 days d. Prior Service / Characterizations: RA, 21 June 1977 – 22 June 1981 / HD USARCG, 23 June 1981 – 17 March 1983 / NA USAR, 18 March 1983 – 17 March 1989 / HD ADT, 3 August 1984 – 7 July 1985 / NA (Concurrent Service) (Break in Service) USAR, 9 March 1992 – 8 February 2001 / HD AD (ARNG/AGR), 9 March 1992 – 8 February 2001 (Concurrent Service) e. Overseas Service / Combat Service: Germany, Korea / None f. Awards and Decorations: AGCM-2, NDSM, GWOTSM, KDSM, NCOPDR-3, ASR, AFRM, OSR / The applicant’s AMHRR reflects award of the ARCOM, however, the award is not reflected on the DD Form 214. g. Performance Ratings: November 2000 – September 2001 / Among the Best October 2001 – September 2002 / Among the Best 10 October 2002 – September 2003 / Among the Best h. Disciplinary Action(s) / Evidentiary Record: 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 signature. The applicant had lost time for the period 29 September 2004 to 1 October 2004. i. Lost Time / Mode of Return: 3 days (NIF, 29 September 2004 – 1 October 2004) / NIF j. Behavioral Health Condition(s): (1) Applicant provided: Outpatient Psychiatric Evaluation, dated 27 December 2001, reflecting the applicant had a history of bipolar disorder. The physician’s impression was the applicant was experiencing bipolar disorder; rule out cyclothymia. North Carolina Department of Health and Human Services, Disability Determination Services, dated 4 November 2010, reflecting the applicant was diagnosed with PTSD related to exposure to the death of another Soldier during a training exercise; bipolar disorder; alcohol abuse in remission of five years; and personality disorder, not otherwise specified (NOS). Department of Veterans Affairs (VA), Review Post Traumatic Stress Disorder (PTSD), dated 16 January 2015, reflecting the applicant was diagnosed with bipolar disorder; PTSD; severe insomnia; problems with primary support group; and occupational problems. Charlotte Behavioral Health Associates Psychological Evaluation, dated 17 January 2018, reflecting the applicant’s psychiatric medical history. The applicant was diagnosed with bipolar disorder and PTSD. Department of Veterans Affairs (VA) Rating Decision, dated 6 November 2018, reflecting the VA rated the applicant 100 percent service-connected disability for PTSD. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: Two DD Forms 214; two DD Forms 293; self-authored statement; court documents for name change; military service records; Hagel Memo; Review PTSD Disability Benefits Questionnaire; VA medical documents; and Central Virginia Family Psychiatry, P. C., Report and Progress Notes. 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 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 Army Military Human Resources Record (AMHRR) is void of the 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 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 applicant contends being diagnosed with PTSD, bipolar I disorder, depression, and impulse control and the conditions affected behavior which led to the discharge. The applicant provided several medical documents indicating a diagnosis of bipolar disorder; PTSD; severe insomnia; alcohol abuse in remission of five years; and personality disorder, not otherwise specified (NOS). The VA rated the applicant 100 percent service-connected disabled for PTSD. The applicant’s AMHRR is void of a mental status evaluation. The applicant contends the discharge should have been for medical reasons. Army Regulation 635-200, in pertinent part, stipulates commanders will not separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. 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: PTSD, Bipolar 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 Bipolar Disorder and is service connected by the VA for PTSD and Bipolar Disorder. Service connection establishes that applicant's PTSD also 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 multiple potentially mitigating BH conditions. Applicant was diagnosed in service with Bipolar Disorder and is service connected by the VA for PTSD and Bipolar Disorder. While the applicant also self-asserts Impulse Control Disorder, this is not a mitigating BH condition. The full facts and circumstances of applicant’s discharge are not contained in the file, but the record indicates that applicant was convicted for soliciting underage sex through the internet. Neither PTSD nor Bipolar Disorder mitigates this misconduct. There is no natural sequela between PTSD and soliciting underage sex through the internet since PTSD does not interfere with the ability to distinguish between right and wrong and act in accordance with the right. Therefore, applicant’s BH conditions provide no mitigation for the offense of soliciting underage sex through the internet. (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 PTSD and Bipolar Disorder outweighed the accepted basis for applicant’s separation – civil conviction for soliciting underage sex through the internet – for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends being diagnosed with PTSD, bipolar I disorder, depression, and impulse control and the conditions affected behavior, which led to the discharge. The Board considered this contention and the applicant’s PTSD, Bipolar Disorder, and asserted impulse control and depression. The Board determined that applicant’s asserted impulse control is not a potentially mitigating condition, and that the only conditions the applicant was service connected for is PTSD and Bipolar. However, the applicant’s BH conditions do not mitigate the misconduct of soliciting underage sex through the internet as there is no natural sequela between PTSD and the nature and severity of the misconduct, and the conduct in this case is not representative of a manic episode of Bipolar Disorder. After considering the totality of the record, the Board determined that the basis for separation is not mitigated or outweighed, and the discharge is proper and equitable. (2) The applicant contends the discharge should have been for medical reasons. The Board determined that the applicant’s requested change to the DD Form 214 does not fall within the purview of the ADRB. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using a DD Form 149 regarding this matter. A DD Form 149 may be obtained from a Veterans’ Service Organization. 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 the available evidence did not support a conclusion that the applicant’s BH conditions of PTSD and Bipolar Disorder outweighed the accepted basis for applicant’s separation – civil conviction for soliciting underage sex through the internet. 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 the level of service warranted for an upgrade to an HD or GD. (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 AR20210001978 1