1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the discharge was improper and inequitable, because the applicant experienced a significant lumbar spine injury which went undiagnosed and untreated by the assigned Military Treatment Facility on Fort Campbell. The sustained injury was the key factor to the uncharacteristic usage of drugs and alcohol to self-medicate the condition’s symptoms, and a steep decline in performance. The Dayton VA Medical Center provided medical evidence which lists the diagnosed vertebrae fractures and injuries incurred from a high fall during a morning physical training session in September 2011. While serving, the diagnoses and treatment were disregarded. The applicant was never adequately rehabilitated but was quickly discharged in preparation for the unit’s upcoming deployment to Afghanistan in September 2012. The applicant was wrongfully discharged because of failing to receive proper treatment for the service-connected manic-depressive disorder, which was diagnosed while undergoing inpatient rehabilitation at Cumberland Hall in Hopkinsville, Kentucky. The injuries from a single fall-related incident resulted in chemical dependency, behavioral issues, and a decline in performance, which led to the discharge. 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 17 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 / General (Under Honorable Conditions) b. Date of Discharge: 23 August 2012 c. Separation Facts: The applicant’s Army Military Human Resource Record (AMHRR) is void of the complete case separation file. However, the applicant provided several documents which are described below in 3c(1). (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 11 July 2012, the following charges were preferred against the applicant: Charge I: Violation of Article 86, UCMJ, for: Specification 1: being AWOL from 19 to 20 March 2012. Specification 2: failing to go at the time prescribed to the appointed place of duty on 21 March 2012, to wit: 0630 accountability formation. Specification 3: failing to go at the time prescribed to the appointed place of duty on 21 March 2012, to wit: 0930 at company area. Specification 4: being AWOL from 24 to 26 March 2012. Charge II: Violation of Article 91, UCMJ, for: Specification 1: disobeying 1SG W. S. F., on divers occasions between 23 and 25 March 2012. Specification 2: disobeying 1SG W. S. F., on 26 March 2012. Charge III: Violation of Article 112a, UCMJ, for: Specification 1: wrongfully using marijuana between 25 February and 26 March 2012. Specification 2: wrongfully using cocaine between 16 and 26 March 2012. (2) Legal Consultation Date: NIF (3) Basis for Separation: NIF (4) Recommended Characterization: NIF (5) Separation Decision Date / Characterization: 10 August 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 29 April 2009 / 4 years, 17 weeks b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / 112 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 3 months, 25 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (26 January 2010 – 5 February 2011) f. Awards and Decorations: ACM-CS, ARCOM, NDSM, GWOTSM, ASR, OSR, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The applicant’s Enlisted Record Brief (ERB), dated 16 May 2012, reflects the applicant was flagged for Adverse Action (AA), effective 24 March 2012 and Army Body Composition Program (KA), effective 6 March 2012; was ineligible for reenlistment due to Field Bar to Continued Service (9K). The Assignment Eligibility Availability code reflects the applicant was temporarily ineligible for reassignments due to medical, convalescence, student and/or trainees (except IET), enrollment in the Army Substance Abuse Program (ASAP) inpatient re-habilitation, or local bar to reenlistment. The applicant’s reduction to E-1 resulting from the discharge had not yet been reflected. The applicant’s DD Form 214 reflects the applicant had not 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. The applicant’s Army Military Human Resource Record (AMHRR) is void of the complete case separation file. However, the applicant provided several documents which are described below: Charge sheet as described in previous paragraph 3c. Electronic Copy of DD Form 2624, dated 12 April 2012, reflects the applicant tested positive for COC (cocaine) and THC 144 (marijuana), during an Inspection Other (IO) urinalysis testing, conducted on 26 March 2012. Three Developmental Counseling Forms for failing to go at the time prescribed to the appointed place of duty, being AWOL, and failing to follow instructions. Two Administrative Orders Based on Misconduct, dated 21 March 2012 and 11 July 2012, list orders issued to the applicant because of failing to report to appointed place of duty at the prescribed time, being AWOL and flight risk, and substance abuse. Health Record, dated 14 September 2011, reflects the applicant receiving treatment for back pain caused by falling from a rope during PT. VA Medical document, dated 24 April 2014, indicates an evaluation based on CT of the Thoracic Spine and “T9 Compression Fracture,” and an impression showing “mild wedge fractures of T7, T8, and T9 vertebral bodies of unknown age. Radiologic Consultation Report by VA, dated 14 November 2014, verifies the results and findings of an MRI of the lumbar spine without contrast based on lower back pain resulting from an accident in 2012(sic) which caused compression fractures in thoracic and lumbar spine. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: DD Form 2807-1 (page 3 of Report of Medical History), dated 8 June 2012, notes sleep and anxiety issues. Medical History and Physical, and Psychiatric Evaluation, dated 13 June 2012, and Discharge Summary, dated 27 June 2012, reflect the applicant being admitted into the Cumberland Hall Behavioral Health Services and treatment for Major Depressive Disorder and Alcohol Abuse. The discharge diagnoses were “Axis I,” an “Adjustment Disorder with Depressed Mood”; “Alcohol Dependence, Continuous Use”; and “Alcohol Withdrawal.” (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; DD Form 214; three counseling forms; two Administrative Orders; three Daily Staff Duty Logs; two DA Forms 4187; DA Form 268; Rights Warning certificate; DD Form 2624; Electronic Copy of DD Form 2624; two Sworn Statements; Court-Martial Charges Transmittal Form; DD Form 458; Health Records; Medical FC Form 3097; DD Form 2807-1 (page 3); three third-party statements; VA Medical Records; Medical History and Physical report; Psychiatric Evaluation report; Discharge Summary report; Radiologic Consultation Reports; Battalion Commander’s letter; State Representative letter; and American Legion Statement. 6. POST SERVICE ACCOMPLISHMENTS: The applicant’s third-party statement indicates the applicant maintains employment as a line cook with Smokin’ Aces Restaurant. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities’ last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board) sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember’s date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10, United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. (5) Paragraph 10-8a stipulates a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. (See chap 3, sec II.) 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 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 general (under 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. Although not in the AMHRR, the applicant, in consultation with legal counsel had voluntarily requested in writing, a discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. In the 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 initially received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends the discharge was improper and inequitable because the applicant experienced a significant lumbar spine injury which went undiagnosed and untreated by the assigned Military Treatment Facility on Fort Campbell. The applicant’s available AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant provided a health record, date 14 September 2011, which reflects the applicant received treatment for back pain caused by falling from a rope during physical training. The applicant contends being wrongfully discharged because of not receiving proper treatment for the service-connected manic-depressive disorder. The applicant’s documentary evidence of a psychiatric evaluation, dated 13 June 2012, and a discharge summary, dated 27 June 2012, provides treatment and diagnoses for Major Depressive Disorder and Alcohol Abuse, and an “Axis I” diagnosis of an “Adjustment Disorder with Depressed Mood, Alcohol Dependence, Continuous Use,” and “Alcohol Withdrawal.” The third-party statements included with the application speak highly of the applicant's character and dependability, both while serving and at the current employment, including the observations of the applicant’s good behavior after leaving the Army. The applicant’s supporting documents demonstrate persistent and successful efforts with overcoming the drug dependency and maintaining employment with a restaurant. 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. 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: Neurosis (Generalized Anxiety Disorder) and TBI. Additionally, the applicant asserts both manic- depressive (bipolar) disorder and the psychological impact of an injury (ex: chronic pain), which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant was service connected for neurosis/generalized anxiety disorder and TBI and has reasonable evidence for the experience of chronic pain per applicant’s records. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that applicant has evidence of mood concerns on active duty, service connected as Neurosis (typically considered equivalent of Generalized Anxiety Disorder) and is service connected for TBI. Applicant’s application asserts “service-connected manic-depressive disorder” but the advisor located no evidence of this (typically diagnosed as bipolar disorder) related to applicant’s period of active duty, service connected or otherwise. There is no evidence in the record that TBI resulted in any noteworthy cognitive impairment. Applicant has a history of a back injury due to a fall from height while conducting PT; under liberal consideration guidelines and within the scope of practice of the agency behavioral health advisor, this injury supports the potential presence of chronic pain which often influences/mitigates mood and behavior. However, the advisor also notes the general absence of active-duty service records addressing this injury) to include appropriate pain management treatment. The overall medical and service record supports partial mitigation of offenses leading to discharge. Anxiety and chronic pain partially mitigate substance misuse, as there is generally a nexus between such use and self-medication of both anxiety symptoms and chronic pain. However, per impact of chronic pain and associated self-medication - which applicant asserts - the record shows limited attempts to engage in appropriate medical care for back injury; such treatment may have reasonably negated the need to rely on illicit substances/alcohol. The natural history and sequelae of significant anxiety includes avoidance of significantly anxiety-invoking stimuli, generally resulting in a nexus between this condition and AWOL and FTR. However, the record supports at least 1 such episode being seemingly willful in nature due to desire to remain with women at a hotel than return to work. None of the potentially mitigating conditions would mitigate failure to comply with a lawful order, as there is no nexus between neurosis/GAD, TBI, and/or chronic pain and failure to comply with lawful orders or directives noted in the record. Upon weighing all available evidence, the advisor finds that the evidence supporting partial mitigation does not outweigh the totality of the disciplinary issues leading to discharge. (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 neurosis/generalized anxiety disorder, TBI, and chronic pain fully outweighed the basis for applicant’s separation – failure to comply with multiple lawful orders and directives – for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends the discharge was improper and inequitable because the applicant experienced a significant lumbar spine injury which went undiagnosed and untreated by the assigned Military Treatment Facility on Fort Campbell. The Board considered this contention and determined applicant’s lumbar spine injury does not excuse or mitigate applicant’s AWOLs, FTRs, failure to comply with multiple lawful orders and directives, marijuana use, and cocaine use basis for separation. (2) The applicant contends being wrongfully discharged because of not receiving proper treatment for the service-connected manic-depressive disorder. The Board considered this contention and the applicant’s assertion of manic-depressive disorder; however the Board could not determine whether the applicant’s asserted manic-depressive disorder actually outweighed the applicant’s multiple AWOLs, multiple FTRs, multiple disobedience incidents, wrongful use of marijuana and wrongful use of cocaine without the Board Medical Advisor determination on medical mitigation. Without additional medical evidence, the Board was unable to determine if the applicant’s asserted manic-depressive disorder outweighed the applicant’s discharge (3) The applicant’s supporting documents demonstrate persistent and successful efforts with overcoming the drug dependency and maintaining employment with a restaurant. The Board considered this contention and determined that the applicant’s efforts with overcoming the drug dependency and maintaining employment with a restaurant do not outweigh the misconduct based on the seriousness of the applicant’s offense of multiple AWOLs, multiple FTRs, failure to comply with multiple lawful orders and directives, wrongful use of marijuana and wrongful use of cocaine. 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 before the Board, the applicant’s neurosis/generalized anxiety disorder, TBI, and chronic pain did not excuse or mitigate the offenses of failure to comply with multiple lawful orders and directives. 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: 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 AR20210002066 1