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, serving honorably before sustaining head injuries. The applicant was suffering from two undiagnosed traumatic brain injuries, which led to the discharge. The applicant would have been eligible for review by a Medical Evaluation Board (MEB) had the TBI been acknowledged. The applicant requests a correction to DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect the missing various awards and other commendations. The applicant obtained an undergraduate degree in the four years following discharge, while working full-time. b. Board Type and Decision: In a records review conducted on 8 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: 6 June 2008 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, however, as announced by General Court-Martial Order Number 63, dated 6 June 2002, on 23 October 2001, the applicant was found guilty of the following: Charge I: Violating Article 91, UCMJ, Specification: for disobeying a non-commissioned officer. Charge II: Violating Article 92, UCMJ, Specification: for failing to obey General Order or Regulation. Charge III: Violating Article 95, UCMJ, Specification: for fleeing from apprehension. Charge IV: Violating Article 111, UCMJ, Specification: for reckless driving. Charge V: Violating Article 128, UCMJ, Specification: for assault with a vehicle. (1) Legal Consultation Date: 16 May 2002 (2) 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. (3) Recommended Characterization: NIF (4) Separation Decision Date / Characterization: 23 October 2001 / The findings were approved and the sentence of no punishment was approved. The accused’s request for discharge pursuant to the provisions of Chapter 10, Army Regulation 635-200, was approved on this date for the issuance of a discharge under other than honorable conditions. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 September 1996 / 5 years / The AMHRR is void of any enlistment contract retaining the applicant on active duty but was retained in service 2,446 days for the convenience of the Government per AR 635-200. b. Age at Enlistment / Education / GT Score: 18 / GED / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 44E10, Machinist / 12 years, 3 months, 14 days d. Prior Service / Characterizations: ARNG, 25 October 1995 – 26 March 1996 / UNC ARNG, 27 March 1996 – 25 September 1996 / NA e. Overseas Service / Combat Service: Germany / None f. Awards and Decorations: NDSM-2, ASR, OSR / The applicant’s AMHRR reflects award of the ARCOM and AAM, however, these awards are not reflected on the DD Form 214. g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: General Court-Martial Order Number 63, dated 6 June 2002, as described in previous paragraph 3c. Two Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY)” to “Confined by Military Authorities (CMA),” effective 23 October 2001; and, From “CMA” to “PDY,” effective 11 April 2002. Orders 151 0185, dated 30 May 2008, reflect the applicant was to be reassigned to the U.S. Army Transition Point and discharged on 6 June 2008 from the Regular Army. The applicant’s Enlisted Record Brief (ERB), dated 28 May 2008, reflects the applicant was temporarily ineligible for reassignments due to confinement due to separation In Lieu of Trial by Court-Martial or local bar to reenlistment. The applicant was reduced from E-4 to E-1, effective 6 June 2008. The applicant’s DD Form 214, reflects the applicant had completed the first full term of service. The applicant was discharged under the authority of AR 635-200, Chapter 10, with a narrative reason of In Lieu of Trial by Court-Martial. The DD Form 214 was not authenticated with the applicant’s electronic signature. The applicant had lost time for the period 23 October 2001 to 10 April 2002. Several Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 169 days (CMA, 23 October 2001 – 10 April 2002) / Released from Confinement j. Applicant Provided and/or AMHHR Listed PTSD / TBI / Other Behavioral Health Conditions: None. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; Legal Brief with all listed enclosures A through N; Enlisted Record Brief; two third-party letters; medical records; copies of military personnel records; self-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: The applicant obtained an undergraduate degree in four years, while working full-time. 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 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) discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends suffering from two undiagnosed traumatic brain injuries which should have made the applicant eligible for a MEB had the TBI been acknowledged. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention of TBI. 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 AMHRR is void of a mental status evaluation. 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’s request for MEB 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. A DD Form 149 may also be obtained from a Veterans’ Service Organization. The applicant contends good service. The Board considered the service accomplishments and the quality of service. The applicant contends DD Form 214 need corrected to reflect the missing awards and other commendations. The applicant’s request 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 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 contends obtaining an undergraduate degree in four years following the discharge, while working full-time. 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, TBI, Major Depressive Disorder (MDD). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant’s PTSD and TBI existed during military service, and that the applicant’s post-service MDD did not exist during service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that there are no natural sequelae between PTSD or TBI and disobeying orders, fleeing from apprehension or assault with a vehicle since neither condition impacts 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, and determined that the available evidence did not support a conclusion that the applicant’s PTSD and TBI outweighed the basis for applicant’s separation – assault with a vehicle, reckless driving, fleeing from apprehension, and disobeying an order. b. Response to Contention(s): (1) The applicant contends suffering from two undiagnosed traumatic brain injuries which should have made the applicant eligible for a MEB had the TBI been acknowledged. AR 635-200 Chapter 1, paragraph 1-34e states that a Soldier pending a Chapter 10 separation is eligible to complete the MEB phase of DES but is ineligible to be referred to the MEB or PEB once the Chapter 10 separation is approved. (2) Further, 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 concurred with the Board’s Medical Advisor and determined that the applicant’s PTSD and TBI have no natural sequelae with the nature and severity of the applicant’s misconduct. After considering the totality of the evidence, the Board determined the discharge is proper and equitable. (3) 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 committing assault with a vehicle, reckless driving, fleeing from apprehension, and disobeying an order, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (4) The applicant contends DD Form 214 need corrected to reflect the missing awards and other commendations. 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. (5) 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 severity of the offenses. (6) The applicant contends obtaining an undergraduate degree in four years following discharge, while working full-time. 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 outweigh the discharge 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. 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 TBI did not excuse or mitigate the basis for applicant’s separation – assault with a vehicle, reckless driving, fleeing from apprehension, and disobeying an order. 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. By committing assault with a vehicle, reckless driving, fleeing from apprehension, and disobeying an order, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, 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 and the applicant’s PTSD, TBI, and MDD though not mitigating, 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 AR20210002429 1