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, suffering from PTSD for years since witnessing a friend’s death. The applicant’s accomplishments during the brief military service and recent post-service conduct are true reflections of the applicant’s character and demonstrate any acts of misconduct which led to the bad discharge were aberrations which can be explained. b. Board Type and Decision: In a records review conducted on 9 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: 9 May 2002 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): NIF (2) Legal Consultation Date: 28 March 2002 (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. The applicant understood that the applicant may request discharge in lieu of trial by court-martial because of the following charges which have been preferred against the applicant under the Uniform Code of Military Justice, one of which or a combination of which authorizes the imposition of a bad conduct or dishonorable discharge: Article 80 - Attempt to Defraud; Article 91 - Insubordinate Conduct Toward Noncommissioned Officer. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 4 April 2002 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 August 2000 / 2 years b. Age at Enlistment / Education / GT Score: 25 / High School Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-2 / 13B10, Cannon Crewmember / 1 year, 9 months, 5 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CID Report of Investigation, dated 3 March 2002, reflects an investigation established probable cause to believe the applicant committed the offense of Attempted Receipt of Services Under False Pretenses when the applicant applied for various credit loans from local retails as PFC [redacted], a false name and Social Security number. Military Police Report, dated 21 May 2002, reflects an investigation revealed the applicant was arrested by a Riley County Police Officer on a bench warrant for failure to appear. The applicant was transported to the Riley County Law Enforcement Center, where the applicant was processed and held in lieu of a $1000 bond. The applicant posted bond and was released to the military police at 1749 hrs. The applicant was transported to the PMO, where the applicant was further processed and released to the unit. CID Report of Investigation, dated 15 November 2005, reflects an investigation established probable cause to believe the applicant committed aggravated Assault, when on 21 January 2001, the applicant struck [redacted] in the back with a board with a nail through it. i. Lost Time / Mode of Return: 1 day: (AWOL, 6 March 2002 – 7 March 2002) / NIF j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of Report of Mental Status Evaluation, dated 26 February 2001, which reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. It was noted the Soldier was seen at CMHS. This Soldier is currently being seen for treatment of Acute Stress Reaction and Bereavement at CMHS. Soldier is receiving services which include medication to assist the Soldier during a period of stress and to address the handling of testimony related to the death of a friend. It is recommended the Soldier receive the support of the section and unit at this time. The applicant provided a copy of Report of Mental Status Evaluation, dated 1 May 2002, which reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. It was noted Soldier was seen at CMHS as a command-referral. An evaluation revealed this Soldier has been seen at CMHS for treatment of Acute Stress Disorder and Bereavement. Soldier currently denies any suicidal ideation but continues to experience frustration with unit handling of past event related to death of another unit member. During the course of treatment, the Soldier reported difficulties in participation with treatment due to inability to attend sessions. The Soldier continues to present with maladaptive coping skills related to Post-Traumatic Stress Disorder and therefore, should be considered suitable for Chapter 5-17, although the unit may prefer to chapter the Soldier under Chapter 10 for other patterns of misconduct. Finally, if the condition worsens the unit should contact CMHS. If the Soldier begins to act in a way which is dangerous to others, the MPs should be notified. The Soldier is cleared for administration separation. The applicant provided a copy of a letter from Chaperon Therapy, LCSW-RPC, dated 24 February 2015, which reflects the applicant was diagnosed with PTSD from military service history and Depressive Disorder. The applicant provided a copy of a letter from Mount Sinai School of Medicine, which reflects the applicant was evaluated on 8 February 2017. At the time of the evaluation, it was the impression, the applicant suffers from Depression, Generalized Anxiety and Post Traumatic Stress Disorder, secondary to service in the Army, when the applicant witnessed a friend being shot. The applicant was prescribed medication. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; legal brief with listed enclosures. 6. POST SERVICE ACCOMPLISHMENTS: The applicant purchased a barbershop and gave back to the community by giving free haircuts to children returning to school. The applicant has also done other volunteer work in the community by obtaining tickets to the Big Apple Circus for parents and their children to attend the circus. For the past six years the applicant has hosted barbecues for the community. Volunteered for three months in the HR department of The Legal Aid Society of NYC. The applicant was hired as a city-wide investigator in the Legal Aid’s Office. The applicant is a parent of five children. 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 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 general (under honorable conditions) received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends good service. The Board considered the service accomplishments and the quality of service. The applicant contends suffering from PTSD and survivor’s guilt due to the death of a friend. The applicant provided a copy of a letter from Chaperon Therapy, LCSW-RPC, dated 24 February 2015, which reflects the applicant was diagnosed with PTSD from military service history and Depressive Disorder. The applicant provided a copy of a letter from Mount Sinai School of Medicine, which reflects the applicant was evaluated on 8 February 2017. At the time of the evaluation, it was the impression, the applicant suffers from Depression, Generalized Anxiety and Post Traumatic Stress Disorder, secondary to service in the Army, when the applicant witnessed a friend being shot. The applicant was prescribed medication. The applicant provided a copy of Report of Mental Status Evaluation, dated 26 February 2001, which reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. It was noted Soldier was seen at CMHS. This Soldier is currently being seen for treatment of Acute Stress Reaction and Bereavement at CMHS. Soldier is receiving services which include medication to assist the Soldier during a period of stress and to address the handling of testimony related to the death of a friend. It is recommended the Soldier receive the support of the section and unit at this time. The applicant provided a copy of Report of Mental Status Evaluation, dated 1 May 2002, which indicates the applicant was mentally responsible and recognized right from wrong. The MSE does not indicate any diagnosis however, it was noted Soldier was seen at CMHS as a command-referral. An evaluation revealed this Soldier has been seen at CMHS for treatment of Acute Stress Disorder and Bereavement. Soldier currently denies any suicidal ideation but continues to experience frustration with unit handling of past event related to death of another unit member. During the course of treatment, the Soldier reported difficulties in participation with treatment due to inability to attend sessions. The Soldier continues to present with maladaptive coping skills related to Post-Traumatic Stress Disorder and therefore, should be considered suitable for Chapter 5-17, although the unit may prefer to chapter the Soldier under Chapter 10 for other patterns of misconduct. The applicant contends there is nothing in the Army records which show charges were ever preferred against the applicant. Evidence of the applicant’s AMHRR shows on 28 March 2002, the applicant requested a discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. In the request the applicant understood that the applicant may request discharge in lieu of trial by court-martial because of the following charges which have been preferred against the applicant under the Uniform Code of Military Justice, one of which or a combination of which authorizes the imposition of a bad conduct or dishonorable discharge: Article 80 - Attempt to Defraud; Article 91 - Insubordinate Conduct Toward Noncommissioned Officer. The applicant contends certain noncommissioned officers were unsympathetic and hostile towards the applicant after the death of a friend. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends purchasing a barbershop and giving back to the community by giving free haircuts to children returning to school in September. The applicant has also done other volunteer work in the community by obtaining tickets to the Big Apple Circus for parents and their children to attend the circus. For the past six years the applicant has hosted barbecues for the community. Volunteered for three months in the HR department of The Legal Aid Society of NYC. The applicant was hired as a city-wide investigator in the Legal Aid’s Office. The applicant is a parent of five children. 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. 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. 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, Acute Stress Disorder, and Bereavement. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant’s PTSD, Acute Stress Disorder, and Bereavement 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 only the applicant’s PTSD could have provided mitigation for the misconduct, and given the nexus between PTSD and difficulty with authority, there may have been some association between applicant’s PTSD and insubordinate conduct toward an NCO. However, there is no natural sequelae between PTSD and attempting to defraud since PTSD does not 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, Acute Stress Disorder, and Bereavement outweighed the unmitigated basis for applicant’s separation – Attempt to Defraud– for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends good service. 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 the attempt to defraud and insubordination, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation (2) The applicant contends suffering from PTSD and survivor’s guilt due to the death of a friend. 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 there was no association between the applicant’s PTSD and the misconduct, thus the basis for separation is not mitigated. (3) The applicant contends there is nothing in the Army records which show charges were ever preferred against the applicant. The Board considered this contention non-persuasive during its deliberations based on evidence in the applicant’s AMHRR reflecting on 28 March 2002, the applicant requested a discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. In the request the applicant indicated understanding that the applicant may request discharge in lieu of trial by court-martial because of the following charges which had been preferred against the applicant under the Uniform Code of Military Justice: Article 80 – Attempt to Defraud; Article 91 – Insubordinate Conduct Toward Noncommissioned Officer. (4) The applicant contends certain noncommissioned officers were unsympathetic and hostile towards the applicant after the death of a friend. The Board considered this contention, but determined that the Army has many legitimate avenues available to service members requesting assistance with hostile treatment within their unit, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant’s attempt to defraud and insubordination is not an acceptable response, thus the applicant was properly and equitably discharged (5) The applicant contends purchasing a barbershop, volunteering and giving back to the community. The applicant was hired a city-wide investigator in the Legal Aid’s Office. The applicant is a parent of five children. 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 conduct does not out outweigh the severity of the offenses. (6) The third-party statements provided with the application speak highly of the applicant. The Board considered the third-party statements and determined they do not outweigh the basis for separation due to 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. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 insubordination, the remaining offenses of attempts to defraud had no medical mitigation or additional circumstances sufficient enough to outweigh the severity of the misconduct. 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 and the applicant’s BH conditions are service limiting. 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 AR20210002423 1