1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: 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, through counsel, requests an upgrade to honorable. The applicant seeks relief contending, in effect, never being appropriately represented by a defense counsel, wrongfully advised to take the under other than honorable (UOTH) conditions discharge, and not knowing the consequences the applicant could encounter of substantial prejudice in civilian life because of an UOTH discharge. The applicant was represented by a judge advocate who was leaving the next day and recommended a discharge in lieu of trial by a court-martial. The applicant states being a good Soldier. The applicant describes the circumstances and events surrounding the discharge, including being assaulted and seeking behavioral health for anxiety and being severely stressed, and an attempted suicide while in county jail. The applicant was discharged and lived in a campground; however, the applicant moved to Florida and worked for United Parcel Service (UPS) for five years. The applicant went to school and became an EMT, a State and Nationally licensed EMT professional. The applicant contends an upgrade would allow educational benefits through the GI Bill, veterans benefits, and desires to rejoin the Military Service. b. Board Type and Decision: In a records review conducted on 2 March 2023, and by a 4-1 vote, the Board determined the discharge is inequitable based on the totality of the record to include the applicant's length and quality of service, the length of time since the discharge, and the applicant's post-service conduct, outweighing the basis for separation. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN, and the reentry code to RE-3. 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: 1 June 2005 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 13 April 2005, the applicant was charged with: Charge I: Violating Article 86, UCMJ, Specification 1 and 2: for on or about 29 March and 31 March 2006; 1 April and 11 April 2005, on divers occasions without authority, fail to go at the time prescribed to appointed place of duty. Charge II: Violating Article 107, UCMJ, Specification: On 4 April 2005, for with intent to deceive making a totally false statement to SGT D. P. Charge III: Violating Article 134, UCMJ, Specification: On 6 April 2005, for breaking restriction. (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: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 11 May 2005 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 6 November 2001 / 4 years b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 107 c. Highest Grade Achieved / MOS / Total Service: E-4 / 25Q10, Graphics Documents Specialist / 3 year, 6 months, 26 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (11 April 2003 - 11 April 2004) f. Awards and Decorations: AGCM, NDSM, GWOTSM, GWOTEM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. CG Article 15, dated 24 March 2005, for wrongfully fail to go at the time prescribed to the appointed place of duty (14 February 2005); for being derelict in the performances of those duties for willfully failing to shave (15 February 2005); for willfully failing to complete corrective training by writing an essay (16 February 2005); and for intent to deceive by making totally official false statement (14 February 2005). The punishment consisted of a reduction to E-2; forfeiture of $692 pay per month for two months (suspended); and extra duty and restriction for 45 days (suspended). Record of Supplementary Action Under Article 15, UCMJ, dated 6 April 2005, reflects the suspended portion of the punishment imposed on 24 March 2005, was vacated for: failure to report for extra duty on numerous occasions, lied to a non-commissioned officer (NCO) about going to the emergency room and falsified a sick call slip placing the applicant on quarters. Three Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Confined by Military Authorities (CMA)," effective 13 April 2005; and From "CMA" to "PDY," effective 13 May 2005. Several Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 30 days (CMA, 13 April 2005 to 13 May 2005. This period is not annotated on the DD Form 214 block 29.) j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; self-authored statement; Power of Attorney. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has obtained employment with United Parcel Service (UPS) for five years and later as a State and Nationally licensed EMT professional. 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. 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 record of service, 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 under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends the command failed to assist with the applicant's stress and anxiety while going through personal and physical issues, with led to the discharge. The applicant did not submit any evidence, other than the applicant's statement, to support the contention leadership applied extra stress and anxiety. 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's AMHRR contains no documentation of any mental health diagnosis. The AMHRR is void of a mental status evaluation. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends not being appropriately informed by appointed counsel of rights referring to accepting an UOTH discharge; and leadership gave inaccurate information about the potential consequences the applicant may encounter in civilian life of accepting an UOTH. The AMHRR includes a Memorandum for, Subject: Request for Discharge In Lieu of Trial by Court- Martial, 11 May 2005, which reflects the applicant submitted a request for Request for Discharge in Lieu of Trial by Court-Martial, on 25 April 2005 in a subsequent AR 635-200, Chapter 10, In Lieu of Trial by Court-Martial. The Staff Judge Advocate concur with the chain of command and recommend approval of the discharge request and order the issuance of an Under Other Than Honorable Conditions Discharge by the separation authority. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends family 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 good service, including a combat tour. The applicant contends an upgrade would allow educational benefits through the GI Bill. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant contends an upgrade of the discharge would allow veterans benefits. Eligibility for veteran's benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant desires to rejoin the Military Service. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, the applicant was appropriately assigned an RE code of "4." An RE code of "4" cannot be waived, and the applicant is no longer eligible for reenlistment. The applicant contends obtaining employment. 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: The applicant asserts Anxiety, 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 that the applicant self-asserts having Anxiety at the time of 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 the applicant's asserted Anxiety does not mitigate the applicant's offenses of FTR, false official statement, or breaking restriction as there is no evidence in the applicant's official record or provided by the applicant, other than the applicant's statement, to support that the applicant experienced anxiety symptoms or was diagnosed with anxiety. Further, even with evidence of anxiety symptoms or an anxiety diagnosis, anxiety does not mitigate the applicant's offenses as there is there is no natural sequela between anxiety and FTR, false official statement, or breaking restriction. (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 asserted Anxiety outweighed the basis for applicant's separation - FTRs, false official statement or breaking restriction - for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends good service, including a combat tour. The Board considered this contention during proceedings, and ultimately voted to upgrade based on the totality of the record to include the applicant's length and quality of service, the length of time since the discharge, and the applicant's post-service conduct, outweighing the basis for separation. The applicant desires to rejoin the Military Service. The Board considered this contention and voted to change the RE-code to a RE-3, which is a waivable code. An RE Code of "3" indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army's needs at the time and are required to process waivers of reentry eligibility (RE) codes, if appropriate. (2) The applicant contends the command failed to assist with the applicant's stress and anxiety while going through personal and physical issues, with led to the discharge. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the totality of the record to include the applicant's length and quality of service, the length of time since the discharge, and the applicant's post-service conduct, outweighing the basis for separation. (3) The applicant contends not being properly informed by appointed counsel of rights referring to accepting an UOTH discharge; and leadership gave inaccurate information about the potential consequences the applicant may encounter in civilian life of accepting an UOTH. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the totality of the record to include the applicant's length and quality of service, the length of time since the discharge, and the applicant's post-service conduct, outweighing the basis for separation. (4) The applicant contends family issues affected behavior and ultimately caused the discharge. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the totality of the record to include the applicant's length and quality of service, the length of time since the discharge, and the applicant's post-service conduct, outweighing the basis for separation. (5) The applicant contends an upgrade would allow educational benefits through the GI Bill, as well as veterans benefits. The Board considered this contention and determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. (6) The applicant contends obtaining employment. The Board considered the applicant's post-service conduct and ultimately voted to upgrade based on the totality of the record to include the applicant's length and quality of service, the length of time since the discharge, and the applicant's post-service conduct, outweighing the basis for separation. c. The Board determined the discharge is inequitable based on the totality of the record to include the applicant's length and quality of service, the length of time since the discharge, and the applicant's post-service conduct, outweighing the basis for separation. Therefore, the Board voted to grant relief. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable based on the totality of the record to include the applicant's length and quality of service, the length of time since the discharge, and the applicant's post-service conduct, outweighing the basis for separation. Thus, the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (3) The Board voted to change the RE code to RE-3. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: RE-3 e. Change Authority to: AR 635-200, paragraph 14-12a 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 AR20210002268 1