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, being undiagnosed with Post-traumatic stress disorder (PTSD) along with a myriad of other problems because of combat deployments. The applicant contends the Licensed Clinical Social Worker (LCSW) stated the behavioral health issues which led to the discharge were from mental health issues. The applicant states once deployed to Iraq; the unit had multiple missions which led to lack of sleep. The applicant believes while deployed, everything the applicant cared about no longer mattered because all the applicant needed was a weapon and fellow Soldiers. The applicant states once the unit was scheduled for redeployment, the applicant tried to stay on deployment because the applicant could not live in the states anymore. The applicant redeployed back to the states with a relaxed attitude, which led to getting into trouble with authorities. The applicant states not getting along with leadership and constantly arguing, fighting, and drinking daily. The applicant contends personal issues affected behavior and ultimately caused the discharge. The applicant contends leadership provided no support when the applicant was having financial problems. The applicant states still experiencing lack of sleep, nightmares, anxiety, frustration, anger, nervousness, and the feeling of madness since the discharge. b. Board Type and Decision: In a records review conducted on 11 April 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: 17 May 2010 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 12 April 2010, the applicant was charged with: Charge I: Violating Article 112a, UCMJ, Specification: On or about 7 December 2009 and 6 January 2010, for Wrongful Use of marijuana a Controlled Substance. (2) Legal Consultation Date: 16 April 2010 (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: 4 May 2010 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 February 2008 / 5 years b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 88 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 4 years, 5 months, 20 days d. Prior Service / Characterizations: RA, 28 November 2005 – 17 February 2008 / HD e. Overseas Service / Combat Service: SWA / Iraq (16 January 2007 – 29 March 2008) f. Awards and Decorations: NDSM, GWOTSM, ICM-CS, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. Electronic Copy of DD Form 2624, dated 11 February 2010, reflects the applicant tested positive for THC 36 (marijuana), during an Inspection Unit (IU) urinalysis testing, conducted on 6 January 2010. Report of Result of Trial reflects the applicant was tried in a Summary Court-Martial on 21 January 2010. The applicant was charged with one specification. The summary of offense, pleas, and findings: Violation of Article 121, stealing multiple video games of a greater than $500 the property of AAFES: On or about 11 October and 21 October 2009; guilty, consistent with the plea. The Sentence: Forfeiture $964 pay per month for one month, reduction to E-1 and hard labor for 45 days. Developmental Counseling Form, dated 12 February 2010, for illegal use and possession of a controlled substance. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Progress Notes - Danville CBOC, dated 8 June 2016, reflects the applicant was showing the following medical issues: PTSD, Anxiety, insomnia, depression and alcohol abuse. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; third-party letter; medical records; self- authored statement. 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) 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. 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 Resource Record (AMHRR), the issues and documents submitted with the application were carefully reviewed. The evidence of 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 general (under honorable conditions) discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends the discharge was improper because the applicant was suffering from undiagnosed PTSD along with a myriad of other problems because of combat deployments. The applicant contends LCSW stated the behavioral health issues which led to the discharge were from mental health issues. The applicant provided Progress Notes - Danville CBOC, dated 8 June 2016, reflects the applicant was showing the following medical issues: PTSD, Anxiety, insomnia, depression, and alcohol abuse. The applicant provided a third-party statement which speaks to how much the applicant’s personality had changed since joining the Army. The AMHRR is void of a mental status evaluation. 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 AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends personal issues affected behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends leadership provided no support when the applicant was having financial problems. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention. There is no evidence in the AMHRR the applicant sought assistance or reported the financial problems. 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, anxiety, depression and mild TBI. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant is service connected for PTSD, anxiety, depression and VA records contain evidence of TBI suffered during service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined that the applicant has PTSD and has VA service connection for this condition. There is also evidence of a history of mild TBI associated with combat deployment. The basis of discharge in lieu of court-martial, wrongful use of a controlled substance, is mitigated by PTSD as there is a nexus between PTSD and self-medication of symptoms by substance use. However, in considering the totality of service, there appear to be numerous other disciplinary issues in the applicant’s history that are not mitigated by PTSD, anxiety, depression or a potential mild TBI, theft over $500.00 (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 while the applicant’s basis for separation for wrongful use of controlled substance is mitigated by the applicant’s PTSD, the applicant’s PTSD, Anxiety, depression and TBI do not outweigh the medically unmitigated theft offense considered by the SA at the time of the applicant’s discharge. b. Response to Contention(s): (1) The applicant contends the discharge was improper because the applicant was suffering from undiagnosed PTSD along with a myriad of other problems because of combat deployments. The Board considered this contention and determined that while the applicant’s basis for separation for wrongful use of controlled substance is mitigated by the applicant’s PTSD, the applicant’s PTSD, Anxiety, depression and TBI do not outweigh the medically unmitigated theft offense considered by the SA at the time of the applicant’s discharge. Thus, the discharge is proper and equitable. (2) The applicant contends personal issues affected behavior and ultimately caused the discharge. The Board considered this contention, but determined that the Army has many legitimate avenues available to service members requesting assistance with a myriad of personal issues, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant’s theft offense is not an acceptable response to dealing with personal issues, thus the applicant was properly and equitably discharged. (3) The applicant contends leadership provided no support when the applicant was having financial problems. The Board considered this contention and noted that the applicant provided insufficient evidence of any arbitrary or capricious action taken by command. Ultimately, the Board determined the assertion alone did not outweigh the applicant’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, while the applicant’s basis for separation for wrongful use of controlled substance is mitigated by the applicant’s PTSD, while the applicant’s basis for separation for wrongful use of controlled substance is mitigated by the applicant’s PTSD, the applicant’s PTSD, Anxiety, depression and TBI do not outweigh the medically unmitigated theft offense considered by the SA at the time of the applicant’s discharge. 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 General (Under Honorable Conditions) characterization was proper and equitable as the applicant’s misconduct fell below the level of meritorious service warranted for an upgrade to Honorable. (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 AR20210002076 1