1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, after serving seven years honorably and going through difficult times before the discharge, the discharge should be changed to a medical discharge. After returning from deployment from Afghanistan in 2012, the applicant was diagnosed with post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), anxiety, depression, and sleeplessness. The applicant was wounded in battle and was awarded the Purple Heart and because of the medical issues, the applicant contends an upgrade would allow veterans benefits. b. Board Type and Decision: In a records review conducted on 1 December 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: 14 February 2013 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): The applicant’s Army Military Human Resource Record (AMHRR) is void of a DD Form 458, Charge Sheet. Memorandum for SGT S. S., dated 4 January 2013, reflects the applicant was informed of the following reasons: Charge I: Violating Article 92, UCMJ: On 5 October,19 November, and 22 November 2012, for violation of Article 92x3, violation of a regulation. Charge II: Violating Article 90, UCMJ: On 4 January 2012, for disobeying a commissioned officer on 4 January 2012. Charge III: Violating Article 86, UCMJ: On 3 and 4 January 2013, for failing to go to appointed place of duty at the prescribed time. (2) Legal Consultation Date: 1 February 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: 5 February 2013 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 March 2008 / 6 years b. Age at Enlistment / Education / GT Score: 20 / GED / 127 c. Highest Grade Achieved / MOS / Total Service: E-5 / 19D20, Calvary Scout / 6 years, 11 months, 24 days d. Prior Service / Characterizations: RA, 21 February 2006 – 10 March 2008 / HD e. Overseas Service / Combat Service: SWA / Iraq (11 May 2007 – 8 July 2008); Afghanistan (25 February 2011 – 9 January 2012) f. Awards and Decorations: ARCOM-2, PH, AAM-2, AGCM-2, NDSM, ACM-2CS, GWOTSM, ICM-2CS, NCOPDR, ASR, OSR-2, NATOMDL, CAB g. Performance Ratings: 1 July 2011 – 5 October 2012 / Marginal h. Disciplinary Action(s) / Evidentiary Record: Charges as described in previous paragraph 3c. CID Report of Investigation - Initial Final, dated 27 and 28 November and 23 December 2012, reflects an investigation established probable cause to believe the applicant committed the offense of failure to obey a lawful order by wrongful using and possessing of a Controlled Substance (Spice). Confinement Order, dated 4 January 2013, reflects the applicant was charged with violating Articles 92 (three charges), 90, and 86 (two charges). Several Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 (Online Application). 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. 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 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 suffering from diagnosed PTSD, TBI, anxiety, depression, and sleeplessness before the discharge, which affected the applicant’s behavioral health. The applicant provided no evidence, other than the statement, to support the contention of behavior health issues. 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 behavioral health diagnosis. The applicant’s AMHRR contains documentation showing the applicant received a Purple Heart. The AMHRR is void of a Mental Status Evaluation. The applicant’s request for medical discharge does not fall within this board’s purview. 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. 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. 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 held several diagnoses in-service to include Adjustment Disorder, Alcohol Dependence, Cocaine Abuse, Cannabis Abuse, Hallucinogen Dependence, TBI, Personality Disorder, PTSD, and Major Depressive Disorder (MDD). The applicant is service connected for TBI alone. (2) Did the condition exist or experience occur during military service? Yes. The applicant held several diagnoses in-service to include Adjustment Disorder, Alcohol Dependence, Cocaine Abuse, Cannabis Abuse, Hallucinogen Dependence, TBI, Personality Disorder, TBI, PTSD, and Major Depressive Disorder (MDD). The applicant is service connected for TBI alone. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that given the nexus between trauma and substance use, difficulty with authority, and avoidance the basis of separation misconduct is mitigated. Although the applicant’s basis of separation misconduct is mitigated, the Board's Medical Advisor does not recommend further upgrade. Specifically, medical records reflect a chronic history of substance abuse predating deployment to include ongoing cocaine use even after the initial ASAP referral (Pre-deployment drug use would not be mitigated), applicant reported purposeful manipulation to avoid UCMJ action, and applicant reported consciously attempting to obtain a MEB by manipulating treatment services. These behaviors do not support a higher level of characterization. Moreover, the validity of the PTSD diagnosis is of concern especially given the VA has not service connected the applicant for PTSD. Accordingly, the benefit of the doubt was already applied in offering mitigation and a GD-no. (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 outweighed the misconduct chronic history of cocaine use prior to and after deployment as well as after an ASAP referral, manipulation to avoid UCMJ action, and attempting to manipulate services to obtain a MEB. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board noted that narrative reason for discharge 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. Although the applicant’s PTSD mitigates the basis of separation, violating of Article 92x3 wrongful using and possessing of a Controlled Substance (Spice) on three occasions, disobeying a commissioned officer, and FTRs, the Board determined the current narrative reason and characterization are proper and equitable. The Board found in applicant’s file, additional misconduct of chronic history of cocaine use prior to and after deployment as well as after an ASAP referral, manipulation to avoid UCMJ action, and attempting to manipulate services to obtain a MEB. (2) The applicant contends good service, including a combat tour. The Board recognizes and appreciates the applicant’s willingness to serve and considered this contention during board proceedings along with the totality of the applicant’s service record. Ultimately the Board determined an upgrade to Honorable is not supported by the evidence of record. Applicant’s medical records reflect a chronic history of substance abuse predating deployment to include ongoing cocaine use after the initial ASAP referral, applicant reported purposeful manipulation to avoid UCMJ action, and consciously attempting to obtain a MEB by manipulating treatment services. Moreover, the validity of the PTSD diagnosis is of concern, given the VA has not service connected the applicant for PTSD. The applicant was properly and equitably discharged. (3) The applicant contends suffering from diagnosed PTSD, TBI, anxiety, depression, and sleeplessness before the discharge, which affected the applicant’s behavioral health. The Board considered this contention and determined the applicant’s basis for separation is mitigated by PTSD, however the applicant’s medical records reflect a chronic history of substance abuse predating deployment to include ongoing cocaine use after the initial ASAP referral, applicant reported purposeful manipulation to avoid UCMJ action, and consciously attempting to obtain a MEB by manipulating treatment services. The applicant’s PTSD mitigates the violating of Article 92x3 wrongful using and possessing of a Controlled Substance (Spice) on three occasions, disobeying a commissioned officer, and FTRs. The additional misconduct considered by the board noted above is not mitigated. The applicant was properly and equitably discharged. (4) The applicant contends an upgrade of the discharge would allow veterans benefits. The Board 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. 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 despite applying liberal consideration of all the evidence before the Board. While the applicant’s PTSD mitigated the offenses of violating of Article 92, wrongfully using and possessing of a Controlled Substance (Spice) on three occasions, disobeying a commissioned officer, and FTRs, the Board determined an upgrade is not sufficiently supported by the evidence of record the current characterization of service is appropriate. 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 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 / 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 AR20210002368 1