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 applicant served 18 and a half years in the Army with 17 of those being a top notch Soldier. It was not until the 18th year in which the applicant started having problems in the Army. The applicant served on back to back deployments and has since been diagnosed with PTSD. The applicant believes the total 18 plus years in the Army should not be summed up based on the last year and half after the applicant’s mental state was altered from a deployment. b. Board Type and Decision: In a records review conducted on 20 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: 10 August 2005 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 14 June 2005, the applicant was charged with: Charge I: Violating Article 95, UCMJ: Specification 1: On or about 1 January 2005, the applicant resisted being apprehend by Officer M. M., a person authorized to apprehend the accused. Specification 2: On or about 11 April 2005, the applicant fled apprehension by Officer M. M., a person authorized to apprehend the accused. Charge II: Violating Article 128, UCMJ: Specification 1: On or about 10 June 2004, the applicant unlawfully choked J. J. on the neck with the hands; unlawfully pushed the head and body into a wall with the hands; and unlawfully struck J. J. on the face with the hand. Specification 2: On or about 1 January 2005, the applicant unlawfully struck and pushed L. B. on the chest with the hands. Specification 3: On or about 1 January 2005, the applicant assaulted Officer M. M., who then was and was then known by the applicant to be a person then having and in the execution of civilian law enforcement duties, by lifting Officer M. M. body and dropping Officer M. M. on the ground on the head and neck, punching with the fist, and kicking Officer M. M. with the legs. Specification 4: On or about 11 April 2005, the applicant unlawfully struck L. B on the face with the hand. (2) Legal Consultation Date: 13 July 2005 (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: 29 July 2005 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 March 2000 / indefinite b. Age at Enlistment / Education / GT Score: 31 / Bachelor’s Degree / 115 c. Highest Grade Achieved / MOS / Total Service: E-6 / 92A3P, Automated Logistical Specialist / 18 years, 11 months, 12 days d. Prior Service / Characterizations: RA, 29 August 1986 – 27 February 1990 / HD RA, 28 February 1990 – 6 July 1992 / HD RA, 7 July 1992 – 26 January 1995 / HD RA, 27 January 1995 – 25 May 1998 / HD RA, 26 May 1998 – 9 March 2000 / HD e. Overseas Service / Combat Service: Germany, Korea, SWA / Iraq (10 August 2004 – 15 February 2005) (Service in Iraq was derived from an ARCOM in the applicant’s AMHRR. This service is not reflected on the DD Form 214.) NCOER with end date of Oct 2002 also reflects an OIF deployment. Deployment start and end dates are unavailable. f. Awards and Decorations: ARCOM-5, AAM-2, NDSM, KSDM, GWOTSM, NCOPDR-2, ASR g. Performance Ratings: November 1999 – December 2001 / Among The Best January 2002 – June 2002 / Among The Best July 2002 – March 2003 / Fully Capable April 2003 – October 2003 / Among The Best November 2003 – August 2004 / Fully Capable September 2004 – May 2005 / Marginal h. Disciplinary Action(s) / Evidentiary Record: Fayetteville Police Department Incident/Investigation Report, dated 10 June 2004, reflects the applicant was arrested for allegedly choking J. J., banged the head against the wall and slapped J. J. with an open hand. Serious Incident Report (Follow Up), dated 16 June 2004, reflects on 10 June 2004, the applicant had an altercation with the spouse and step-child at their residence. This resulted in the applicant hitting the step-child. The spouse called 911 to alert the police. The 911 operator recorded the applicant threatening to harm the spouse. The applicant then slapped the phone out of the spouse’s hand and left the residence. The applicant returned on 13 June 2004 and the step-child called and alerted the police. The police in turn arrested the applicant and the applicant was charged with two counts of assault, one count of communicating a threat and one count of interfering with a 911 call. Fayetteville Police Department Incident/Investigation Report, dated 1 January 2005, reflects the applicant was arrested for Simple Physical Assault; Interfere Emer Comm; and Comm Threats. Serious Incident Report (Follow Up), dated 1 January 2005, reflects on 1 January 2005 the applicant had an argument with the spouse at their residence. This resulted in the stepchild calling 911 to alert the police. Officers were dispatched to the applicant’s house to investigate. The applicant fell on one of the officer’s while being hand cuffed causing injury to the officer’s shoulder and neck. The officers subdued the applicant using pepper spray and took the applicant into custody. The applicant was taken to WAMC for treatment for injuries to the right leg sustained when being subdued by officers. The applicant was charged with one count of Assault on a public official inflicting serious injury. This was the applicant second serious incident involving domestic violence in less than eight months. Fayetteville Police Department Incident/Investigation Report, dated 11 April 2005, reflects the applicant was arrested for simple physical assault. The spouse stated the applicant had stuck the spouse in the face, curing an argument with the hand. The spouse called 911 and the applicant took the car keys and the spouse’s purse and left the house. Serious Incident Report (Follow Up), dated 11 April 2005, reflects the during an altercation at the residence, the applicant stuck the spouse in the face with the hand. The spouse called the police, and the applicant was apprehended by the Fayetteville Police and taken to Cumberland County Jail. Restraint Order, dated 15 April 2005, reflects the applicant was given a lawful order restraining the applicant from contact with the spouse and child. Charge sheet as described in paragraph 3c(1). i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: A copy of VA rating decision which reflects the applicant was granted 30 percent disability for post-traumatic stress disorder. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: Online application; VA rating decision letter; DD Form 214. 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. (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 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 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 general (under 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 a general (under 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 good service, including a combat tour. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends being diagnosed with post-traumatic stress disorder with major depression by the VA. The applicant provided a copy of the VA rating decision letter which reflects the applicant was granted the 30 percent disability for post-traumatic stress disorder. A mental status evaluation was not included in the AMHRR. 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. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant is diagnosed and service connected by the VA for combat-related PTSD. Service connection establishes that applicant's PTSD 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 applicant is diagnosed and service connected by the VA for combat-related PTSD, which is a potentially mitigating BH condition. However, there is no natural sequela between PTSD and resisting arresting or domestic assaults and no evidence that the applicant’s PTSD contributed to the misconduct. (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 outweighed the basis for applicant’s separation – resisting arrest, fleeing and eluding, and multiple counts of assault – for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention and determined that the applicant was properly separated under the provisions of Chapter 10, AR 635-200. 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. The Board found insufficient factors to warrant deviation from the regulation. (2) The applicant contends good service, including a combat tour. The Board considered the totality of the applicant’s service record, but determined the applicant’s discharge was appropriate because the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the nature and severity of the medically unmitigated misconduct, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (3) The applicant contends being diagnosed with post-traumatic stress disorder with major depression by the VA. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant’s time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member’s discharge characterization. In this case, the Board considered this contention and determined that an upgrade is not warranted as there is no natural sequela between PTSD and resisting arresting or domestic assaults, and no evidence that the applicant’s PTSD contributed to the misconduct. 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 PTSD outweighed the basis for applicant’s separation – resisting arrest, fleeing and eluding, and multiple counts of assault. The Board did not consider any issues of impropriety as the applicant did not present any impropriety issue for the Board's consideration, and there is insufficient evidence of any arbitrary or capricious action taken by Command resulting in any inequity. 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 GD was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to HD. (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 AR20210002198 1