1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: Yes 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, in light of the 3 September 2014 “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder” issued by the Secretary of Defense, support such an upgrade. Additionally, the 4 November 2015 Letter to the Acting Under Secretary of the Army and U.S. Army Chief of Staff from the United States Senate, which acknowledges the large-scale mental health circumstances affecting the discharge of veterans situated similarly as the applicant and encourage review of the discharge status so the appropriate health and welfare benefits become available. Both military and civilian providers have confirmed the applicant suffered PTSD from combat and is being treated for such. The applicant’s age, combat exposure, and timing of the events which led to the discharge, and the quality of service, serve as appropriate basis for granting a discharge upgrade. The applicant served in a war zone and engaged in battle. In the course of this service, the applicant developed PTSD. Although the applicant sought treatment for the PTSD, the mental health conditions were misdiagnosed, hence the applicant was not treated appropriately. The consequences of the lack of treatment played themselves out in both the conduct in which the applicant is alleged to have engaged in, and the subsequent destructive decision to agree to a discharge in lieu of court-martial. Since the discharge, the applicant has had no contacts with law enforcement, has pursued and maintained gainful employment, and has continued a course of therapy for treatment for PTSD. The applicant’s ceiling of success and achievement is limited only due to the nature of this discharge. Given the circumstances, and the quality of the applicant’s service, both propriety and equity dictate the applicant be granted the relief requested. b. Board Type and Decision: In a records review conducted on 2 February 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board’s decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 30 May 2013 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 28 March 2013, the applicant was charged with: The Charge: Violating Article 120, UCMJ. Specification 1: On or about 1 October 2012 and on or about 31 October 2012, knowingly and wrongfully videotape the private area of N. M. N. without consent, and under circumstances in which N. M. N. had a reasonable expectation of privacy. Specification 2: On or about 1 October 2012 and on or about 31 October 2012, knowingly and wrongfully distribute and broadcast a recording the accused knew or reasonably should have known was of the private area of N. M. N., was recorded without the consent, and was recorded under circumstance in which N. M. N. had a reasonable expectation of privacy. (2) Legal Consultation Date: 2 May 2013 (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: 7 May 2013 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 October 2010 / 3 years, 18 weeks b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / 103 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 2 years, 7 months, 27 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (14 May 2011 – 1 November 2011) f. Awards and Decorations: ARCOM, NDSM, GWOTSM, ICM-CS, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 13 July 2012, on or about 12 April 2012, for being disrespectful in deportment toward SSG M. K., by punching a wall locker with the hand after being informed the pass was disapproved. The punishment consisted of a reduction to E-2; suspended, forfeiture of $389, suspended; and extra duty and restriction for 14 days. Riverhead Police Department, 17 December 2012, reflects N. M. N. reported the applicant placed a sex tape of the two of them on XVideos.com without permission. Agent’s Investigation Report, dated 19 December 2012, reflects the applicant was being investigated for videotaping the applicant and N. M. N., having consensual sexual intercourse and the posting the video on the internet unbeknownst to N. M. N. and without consent. Numerous Developmental Counseling Forms, for various acts of misconduct. Charge sheet as described in paragraph 3c(1). i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of Stormont- Vail Health Care Discharge Summary, dated 14 August 2012, which reflects a discharge diagnosis of Bipolar mixed. The applicant provided a copy of Physical Profile, dated 14 August 2012, which reflects the applicant was given a temporary profile for depression. The applicant provided a copy of Physical Profile, dated 28 November 2012, which reflects the applicant was given a permanent profile for anxiety/depression. The applicant provided a copy of progress notes, dated 20 December 2012, which reflect a diagnosis of, Axis I: PTSD, Chronic; Alcohol Abuse, Axis II: R/O Borderline Personality Disorder; Axis IV: family of origin issues; desire to leave the Army/occupational problems; future occupational concerns; Axis V: Global Assessment of Functioning. The applicant provided a copy of VA Summary of Benefits Letter, dated 21 February 2013, reflects the applicant was granted 50 percent service-connection for PTSD and alcohol abuse (also claimed at anxiety, depression, and insomnia). The applicant provided a copy of a letter from Department of Veteran Affair Evaluations/Therapy/Consulting, dated 24 September 2021, which reflects the applicant was diagnosed with PTSD (chronic/severe). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; two attorney briefs with listed enclosures 1 through 54 and listed enclosures 1-65; self-authored statement; Pennsylvania State Police Criminal Record Check; three third-party letters; resume. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has had no contacts with law enforcement. Has pursued and maintained gainful employment and continues therapy for treatment of PTSD. 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 635-40, paragraph 4-3f(1), states enlisted Soldiers who are approved for discharge in lieu of trial by court-martial are ineligible for referral to the MEB and PEB phases of the DES (see AR 635-200). If the Soldier is in the DES process, the applicant’s DES case will be terminated, and the Soldier is discharged in lieu of trial by court-martial. e. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-7c states Under Other Than Honorable Conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. (6) Paragraph 10-8a stipulates a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. (See chap 3, sec II.) (7) Paragraph 10b stipulates Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be improper. f. 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. g. 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 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 under other than 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 an under other than 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 seeking treatment for PTSD; however the applicant’s mental health condition was misdiagnosed and the applicant was not treated appropriately. The applicant contends new guidance warrants an upgrade to honorable. The applicant provided a copy of Stormont-Vail Health Care Discharge Summary, dated 14 August 2012, which reflects a discharge diagnosis of Bipolar mixed. The applicant provided a copy of Physical Profile, dated 14 August 2012, which reflects the applicant was given a temporary profile for depression. The applicant provided a copy of Physical Profile, dated 28 November 2012, which reflects the applicant was given a permanent profile for anxiety/depression. The applicant provided a copy of progress notes, dated 20 December 2012, which reflect a diagnosis of, Axis I: PTSD, Chronic; Alcohol Abuse, Axis II: R/O Borderline Personality Disorder; Axis IV: Family of origin issues; desire to leave the Army/occupational problems; future occupational concerns; Axis V: Global Assessment of Functioning. The applicant provided a copy of VA Summary of Benefits Letter, dated 21 February 2013, which reflects the applicant was granted 50 percent service- connection for PTSD and alcohol abuse (also claimed at anxiety, depression and insomnia). The applicant provided a copy of a letter from Department of Veteran Affair Evaluations/Therapy/Consulting, dated 24 September 2021, which reflects the applicant was diagnosed with PTSD (chronic/severe). The applicant’s AMHRR is void of mental status evaluation. The applicant contends the command did not pursue a Sanity Board which would have provided information regarding the service-related PTSD. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The third party statements provided with the application speak highly of the applicant. They all recognize the applicant’s good conduct while serving and after leaving the Army. The applicant has had no contacts with law enforcement, has pursued and maintained gainful employment and continues therapy for treatment of PTSD. 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: PTSD, Bipolar Disorder, Depression with Anxiety, and Adjustment Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed in service with PTSD, Bipolar Disorder, Depression with Anxiety, and Adjustment Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that there is evidence that applicant was diagnosed in service with multiple potentially mitigating BH conditions to include PTSD, Bipolar Disorder, Depression with Anxiety, and Adjustment Disorder. However, there is no natural sequela between any of these BH conditions and making/distributing a sex tape without consent since none of these conditions interfere with one’s ability to distinguish between right and wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board considered the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant’s PTSD, Bipolar Disorder, Depression with Anxiety, and Adjustment Disorder outweighed the basis for applicant’s separation – recording and distributing a sex tape without consent – for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention but determined that there were insufficient mitigating circumstances which could outweigh the offenses, even after considering the applicant’s diagnosed conditions and the totality of the applicant’s service record. Furthermore, the applicant requested the Chapter 10 discharge to avoid a courts martial. (2) The applicant contends seeking treatment for PTSD; however, the applicant’s mental health condition was misdiagnosed, and the applicant was not treated appropriately but not participating in a sanity board prior to discharge. 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 the applicant’s PTSD did not excuse or mitigate the posting of a sex tape online without consent, as there is no connected between the diagnosis and this offense, which was planned and executed intentionally. (3) The third party statements provided with the application speak highly of the applicant. The Board considered this contention but determined that the evidence did not outweigh the severity of the applicant’s offenses. (4) The applicant has had no contacts with law enforcement, and has pursued and maintained gainful employment and continues therapy for treatment of PTSD. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge must be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings. 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. In this case, the Board considered this contention and determined that the applicant’s post-service accomplishments and PTSD recovery did not outweigh the severity of the offenses. 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 PTSD, Bipolar Disorder, Depression with Anxiety, and Adjustment Disorder did not excuse or mitigate the offenses of recording and posting a sex tape without the consent of the other party as the offense required planning and intentional acts, demonstrating intact mental processes. 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 and requested by the applicant prior to discharge. (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 AR20210002276 1