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 general (under honorable conditions). The applicant through counsel, requests an upgrade to honorable. The applicant seeks relief contending, in effect, there is no question the applicant suffers from PTSD because of combat experiences in Iraq. There is also no question the PTSD manifested itself while the applicant was on active duty and greatly contributed to the alcohol and substance abuse. The applicant’s record of service in the Army is otherwise outstanding. The applicant had no NJPs or other disciplinary actions. The applicant’s duty performance in Iraq was highly commended. The applicant would not wish PTSD on anyone, and most certainly would have continued Army service if the applicant had not suffered the misfortune of developing the condition. b. Board Type and Decision: In a records review conducted on 3 November 2022, 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: 8 April 2010 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 10 March 2010, the applicant was charged with: Charge I: Violating Article 115, UCMJ. The Specification: For the purpose of avoiding service as an enlisted person feign mental derangement on or about 10 March 2010. Charge II: Violating Article 134, UCMJ. The Specification: Wrongfully communicate to Doctor F. J. G, if forced to board an aircraft and deploy the applicant would kill the Chain of Command on or about 10 March 2010. (2) Legal Consultation Date: 10 March 2010 (3) Basis for Separation: Pursuant to the applicant’s request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 18 March 2010 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 January 2009 / 2 years b. Age at Enlistment / Education / GT Score: 21 / High School Graduate / 105 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 8 months, 8 days d. Prior Service / Characterizations: RA, 1 August 2006 – 20 January 2009 / HD e. Overseas Service / Combat Service: SWA / Iraq (3 December 2007 – 15 February 2009) f. Awards and Decorations: ARCOM, VUA, AGCM, NDSM, ICM-CS, ASR, OSR, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Orders 096-0004, dated 6 April 2010, reflect the applicant was to be reassigned to the U.S. Army Transition Point and discharged on 8 April 2010 from the Regular Army. 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 psychiatric history and physical which reflects on 4 January 2010, the applicant was diagnosed with Axis I: Alcohol withdrawal, alcohol dependency, and polysubstance dependency. Axis IV: Severe and Axis V: 45 to 50. The applicant was admitted for inpatient treatment. The applicant provided a copy of HCA Green Oaks discharge summary, which reflects on 1 July 2010, the applicant was diagnosed with Axis I: Depression, not otherwise specified, Amphetamine abuse, and PTSD. Axis III: Benzodiazepine overdose. The applicant provided a copy of VA Rating Decision, dated 9 February 2017, which reflects evaluation of post-traumatic stress disorder (PTSD) with major depressive disorder with opioid, cannabis, and methamphetamine use disorders in remission (previously rated as posttraumatic stress disorder), which was currently 70 percent disabling, was increased to 100 percent effective 26 October 2016. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; attorney brief and with 27 enclosures. 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.) (6) 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. 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaivable 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 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 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 applicant contends suffering from PTSD which caused the applicant to abuse alcohol and drugs. The applicant provided documentation which supports a diagnosis of in-service depression. The applicant provided a copy of psychiatric history and physical which reflect on 4 January 2010, the applicant was diagnosed with Axis I: Alcohol withdrawal, alcohol dependency, and polysubstance dependency. Axis IV: Severe and Axis V: 45 to 50. The applicant was admitted for inpatient treatment. The applicant provided a copy of HCA Green Oaks discharge summary, which reflects on 1 July 2010, the applicant was diagnosed with Axis I: Depression, not otherwise specified, Amphetamine abuse, and PTSD. Axis III: Benzodiazepine overdose. The AMHRR does not contain a mental status evaluation. The applicant contends not being properly diagnosed and treated for PTSD. The applicant provided a copy of Parkview Documentation Patient Notes, dated 9 January 2010, which reflects the applicant was diagnosed with PTSD. It was noted this patient was interviewed for evaluation of symptoms for the diagnosis of PTSD. The applicant met the criteria for this diagnosis. All three clusters of symptoms were fully met. The applicant contends the discharge should have been for medical reasons. Army Regulation 635-200, in pertinent part, stipulates commanders will not separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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, Adjustment Disorder. (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? Partially. 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 mitigating BH condition that should be considered by the Board. Given the nexus between PTSD and avoidance, there may have been some association between applicant’s PTSD and avoiding service as an enlisted person by feigning mental derangement and wrongfully communicated if forced to board an aircraft and deploy the applicant would kill the Chain of Command that led to applicant’s separation. However, the medical record also indicates that applicant had an extensive substance abuse problem that pre-dated applicant’s entry into the Army, and that applicant’s desire not to deploy was determined to be related to applicant’s desire not to leave applicant’s girlfriend. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board concurred with 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 and Adjustment Disorder outweighed the basis for applicant’s separation – avoiding service as an enlisted person by feigning mental derangement and wrongfully communicated if forced to board an aircraft and deploy the applicant would kill the Chain of Command. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention and determined the narrative reason for discharge is appropriate. The Board noted that this action is a procedural step which is part of a normal process, when an alternative forum is chosen. In this case, the charges were dismissed because the applicant requested to be discharged under the provisions of Chapter 10, AR 635- 200, in lieu of trial by court-martial and the convening authority approved that request. There was no evidence presented to the Board to convince the Board of any mitigating circumstances. (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 feign mental derangement and communicating a threat to kill the chain of command if forced to deploy, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (3) The applicant contends suffering from PTSD which caused the applicant to abuse alcohol and drugs. The Board considered this contention during proceedings, but ultimately determined the evidence did not support a conclusion that the applicant’s PTSD and Adjustment Disorder outweighed the basis for applicant’s separation – avoiding service as an enlisted person by feigning mental derangement and wrongfully communicated if forced to board an aircraft and deploy the applicant would kill the Chain of Command (see paragraph 9.a.of this document). The applicant was properly and equitably discharged. (4) The applicant contends not being properly diagnosed and treated for PTSD. The Board considered this contention and determined the applicant was being screened for PTSD as a possible basis for refusal to deploy, but it was ultimately identified that the applicant did not want to deploy due to a change of status in a romantic relationship. The applicant was properly and equitably discharged. (5) The applicant contends the discharge should have been for medical reasons. 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. 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 and Adjustment Disorder did not excuse or outweigh the offenses of avoiding service as an enlisted person by feigning mental derangement and wrongfully communicated if forced to board an aircraft and deploy the applicant would kill the Chain of Command. By feigning mental derangement and communicating a threat to kill the chain of command if forced to deploy, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. 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. (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 AR20210002352 1