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 under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the discharge was inequitable and based on one isolated incident which was a direct result of the applicant's Post-traumatic stress disorder (PTSD) diagnosis after years of honorable service before the incident. The applicant contends family issues affected behavior and ultimately caused the discharge. The applicant believes the command abused its authority because the command did not consider the applicant's PTSD. The applicant states the doctor recommended medical discharge, but this recommendation was dismissed without consideration. The applicant states counsel did not have the applicant's best interest as a priority during the discharge process. The applicant believes being denied the opportunity for justice and due process because counsel gave no other option other than to accept a Chapter 10, if refused the applicant would serve jail time. The applicant 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 that the characterization of service was inequitable based on the applicant's service record, post-service conduct, letter of support from applicant's spouse and compassion for the applicant's PTSD, that does not mitigate his misconduct, but is sever and requires psychiatric treatment. An upgrade will make the applicant eligible for VA behavioral health services. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them. 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: 8 June 2012 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 20 April 2012, the applicant was charged with: Charge I: Violating Article 128, UCMJ, Specification 1, 2, 3, and 4: On 1 April and 30 April 2015; 22 January 2012, for unlawfully kicking, pushing, striking, and choking H. R. with hands. Charge II: Violating Article 92, UCMJ, Specification: On 22 January 2012, for failure to obey a lawful order by wrongfully failing to register a privately owned fireman on post. Charge III: Violating Article 134, UCMJ: Specification 1: On 22 January 2012, for wrongfully and knowing prevent or interfere with H. R.'s ability to place an emergency telephone call, by refusing to return the cell phone and throwing H. R.'s cell phone out of reach. Specification 2: On 22 January 2012, for endangering the mental health, safety, and welfare of the children by unlawfully pushing, striking, and choking H. R. (2) Legal Consultation Date: 16 May 2012 (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: 23 May 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 July 2008 / Indefinite b. Age at Enlistment / Education / GT Score: 28 / Some College / 110 c. Highest Grade Achieved / MOS / Total Service: E-6 / 68W38, Health Care Specialist / 13 years, 10 months, 29 days d. Prior Service / Characterizations: RA, 10 July 1998 - 18 July 2001 / HD RA, 19 July 2001 - 20 July 2003 / HD RA, 21 July 2003 - 25 August 2004 / HD RA, 26 August 2004 - 9 June 2006 / HD RA, 10 June 2006 - 11 July 2008 / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (18 November 2005 - 12 November 2006); Afghanistan (7 May 2008 - 27 March 2009) f. Awards and Decorations: ACM-CS, ICM-2CS, ARCOM-3, AAM-4, ASUA, AGCM-4, NDSM, GWOTSM, KDSM, NCOPDR-2, ASR, OSR-3, NATOMDL g. Performance Ratings: 1 April 2008 - 31 March 2009 / Fully Capable 1 April 2009 - 31 March 2010 / Among The Best 1 April 2010 - 5 November 2010 / Fully Capable 6 November 2010 - 5 November 2011 / Among The Best h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. Military Police Report, dated 22 January 2012, reflects the applicant was apprehended for: simple assault - consummated by a battery (on post), interference with an emergency call (911) (on post), failure to register weapon (on post), report of information: medical emergency (on post) and spouse abuse - civilian female victim (on post). The applicant's Enlisted Record Brief (ERB), dated 4 June 2012, reflects the applicant was flagged for Adverse Action (AA), effective 23 January 2012; was ineligible for reenlistment due to Physical Readiness (9E). The Assignment Eligibility Availability code reflects the applicant received organization stabilization. The Termination date would not exceed 48 months. The applicant was reduced from E-6 to E-1 effective 23 May 2012. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Chronological Record of Medical Care, dated 15 February 2011, reflects the applicant was diagnosed with PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; copies of military personnel records; five three-party letters; self-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has obtained employment as a club manager. 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 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 regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends counsel did not have the applicant's best interest as a priority during the discharge process. The applicant believes being denied the opportunity for justice and due process because counsel gave no other option other than to accept a Chapter 10, if refused, the applicant would serve jail time. The AMHRR includes a Memorandum thru, Subject: Request for Discharge In Lieu of Trial by Court-Martial, 16 May 2012, which reflects the applicant agreed to waive rights in a subsequent AR 635-200, Chapter 10, In Lieu of Trial by Court-Martial. The applicant understood the separation authority had the right to approve an under other than honorable characterization of service for discharge. The understanding of rights was authenticated with the applicant's signature, dated 16 May 2012. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the discharge was inequitable and based on the command abusing its' authority because the command did not consider the applicant's PTSD, and ultimately caused the discharge. The applicant did not submit any evidence, other than the applicant's statement, to support the contention. The AMHRR contains a Chronological Record of Medical Care, dated 15 February 2011, reflecting the applicant was diagnosed with PTSD. The applicant's 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 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 the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, paragraph 3-5, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends the doctor recommended medical discharge, but this recommendation was dismissed without consideration by leadership. The applicant provided no evidence, other than the statement, to support the contention of medical discharge. 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 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 third-party statements provided with the application speak highly of the applicant. They all recognize the applicant's good conduct before and after leaving the Army. 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: PTSD, Anxiety. (2) Did the condition exist or experience occur during military service? Yes. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined the applicant was diagnosed in service with combat-related PTSD and Anxiety. However, there is no natural sequela between PTSD or Anxiety and any of the misconduct that led to applicant's separation since neither condition is associated with perpetrating domestic violence, child neglect, or failing to obey a lawful order. (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 and Anxiety outweighed the basis for applicant's separation - Spousal abuse, disobedience, prevention of 911 call, and endangering mental health of children - 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 counsel did not have the applicant's best interest as a priority during the discharge process. The Board considered this contention and found insufficient evidence in the AMHRR, and in the evidence provided by the applicant, to corroborate the applicant's assertion. (3) The applicant contends the discharge was inequitable and based on the command abusing its' authority because the command did not consider the applicant's PTSD, and ultimately caused the discharge. The Board considered this contention, and ultimately voted to upgrade the applicant's characterization to General, Under Honorable Conditions based on the applicant's service record letter of support from applicant's spouse and compassion for the applicant's PTSD, that does not mitigate his misconduct, but is sever and requires psychiatric treatment. An upgrade to GD will make the applicant eligible for VA behavioral health services. (4) The applicant contends good service, including a combat tour. The Board considered this contention, and ultimately voted to upgrade the applicant's characterization to General, Under Honorable Conditions based on the applicant's service record, post-service conduct, letter of support from applicant's spouse and compassion for the applicant's PTSD, that does not mitigate his misconduct, but is sever and requires psychiatric treatment. An upgrade to GD will make the applicant eligible for VA behavioral health services. However, as outlined below in Part 9d, the Board determined that an upgrade to Honorable was not supported by the record. (5) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board considered this contention and noted Army Regulation 635-200, paragraph 3-5, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. Ultimately, the Board found the current characterization of service to be inequitable, however, as outlined below in Part 9d, the Board determined that an upgrade to Honorable was not supported by the record. (6) The applicant contends the doctor recommended medical discharge. The Board determined that the applicant's requested change to the DD Form 214 does not fall within the purview of the ADRB. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using a DD Form 149 regarding this matter. A DD Form 149 may be obtained from a Veterans' Service Organization. (7) The applicant contends family issues affected behavior and ultimately caused the discharge. The Board determined that an upgrade of the applicant's characterization of service was warranted based on the applicant's service record, letter of support from applicant's spouse and compassion for the applicant's PTSD, that does not mitigate his misconduct, but is sever and requires psychiatric treatment. An upgrade to GD will make the applicant eligible for VA behavioral health services. The Board considered the contention but determined that the applicant's assertion of family issues did not warrant an upgrade to Honorable as it does not fully outweigh the basis for separation. (8) The applicant desires to rejoin the Military Service. The Board considered this contention and determined that 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 may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. (9) The applicant contends obtaining employment. The Board considered this contention, and ultimately voted to upgrade the applicant's characterization to General, Under Honorable Conditions based on the applicant's service record, post-service conduct letter of support from applicant's spouse and compassion for the applicant's PTSD, that does not mitigate his misconduct, but is sever and requires psychiatric treatment. An upgrade to GD will make the applicant eligible for VA behavioral health services. However, as outlined below in Part 9d, the Board determined that an upgrade to Honorable was not supported by the record. c. The Board determined that the characterization of service was inequitable based on the applicant's service record, post-service conduct, letter of support from applicant's spouse and compassion for the applicant's PTSD, that does not mitigate his misconduct, but is sever and requires psychiatric treatment. An upgrade to GD will make the applicant eligible for VA behavioral health services. Accordingly, the Board voted to grant partial relief. However, the applicant may request a personal appearance hearing to address further 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 to change the applicant's characterization of service to General, Under Honorable Conditions based on the applicant's service record, post-service conduct, letter of support from applicant's spouse and compassion for the applicant's PTSD, that does not mitigate his misconduct, but is sever and requires psychiatric treatment. An upgrade to GD will make the applicant eligible for VA behavioral health services. Thus the prior characterization is no longer appropriate. Further, the Board found an upgrade to Honorable not supported by the evidence of record. The Honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of accept conduct and performance of duty or is otherwise meritorious that any other characterization would be clearly inappropriate. The Board found that the applicant's service, due to the nature and severity of the misconduct not being fully outweighed, was not sufficiently meritorious to warrant an honorable discharge (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code, 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: Yes b. Change Characterization to: General, Under Honorable Conditions 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 AR20210002291 1