1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant was a great Soldier and had no incidents which required legal disciplinary action until the incident which led to the discharge. Upon returning from Afghanistan, the applicant noticed feeling out of place, always on edge, angry, and the applicant frequently was spacing-out. The applicant informed the squad leader who suggested the applicant visit mental health. The applicant went to mental health around 11 July 2011, and explained to the mental health the issues the applicant was experiencing. The applicant’s spouse even expressed concern to the mental health professionals. The applicant was confused as to why the applicant had not received an appointment to return until 30 days later when the applicant needed help right away. Over the next couple of weeks, the applicant did what the applicant believed any Soldier would have done. The applicant tried to move forward. On 28 July 2011, two weeks before the applicant’s scheduled appointment, the applicant blacked out and almost killed the spouse. On this day, the applicant destroyed the family and an Army career. It is a cross the applicant must bear every day. Since then, the applicant has received a college degree in Business Administration, rebuilt the relationship with the applicant’s children, and remarried. The career may have turned out differently if the applicant had received the help the applicant needed. b. Board Type and Decision: In a records review conducted on 2 August 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 / Under Other Than Honorable Conditions b. Date of Discharge: 14 November 2012 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 3 April 2012, the applicant was charged with: Charge I: Violating Article 120, UCMJ, The Specification: The applicant did on 28 July 2011, take indecent liberties in a physical presence with A. F., a child under 16 years of age, by telling C. F. to “sit down cunt,” with the intent to abuse, humiliate or degrade C. F. Charge II: Violating Article 128, UCMJ: Specification 1: The applicant did on 28 July 2011, unlawfully grab C. F.’s elbows and shove C. F. into a table and computer stored in the garage. Specification 2: The applicant did on 28 July 2011, unlawfully grab C. F.’s wrist with the hand, and twist C. F.’s arm. Specification 3: The applicant did on 28 July 2011, commit an assault upon C. F. by choking C. F.’s neck with the arms with a force likely to produce death or grievous bodily harm. Charge III: Violating Article 134, UCMJ: Specification 1: The applicant did on 28 July 2011, with intent to commit murder, commit an assault upon C. F. by choking C. F. with the arms. Specification 2: The applicant did on 28 July 2011, wrongfully communicate to C. F. a threat to kill C. F. (2) Legal Consultation Date: 4 September 2012 (3) Basis for Separation: Pursuant to the applicant’s request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions / The chain of command recommended disapproval of the request for Chapter 10, but if discharged recommended the above characterization. (5) Separation Decision Date / Characterization: 25 October 2012 / Under Other Than Honorable Conditions / The convening authority originally disapproved the request for Chapter 10, but the applicant submitted a reconsideration, which was approved. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 October 2010 / 4 years b. Age at Enlistment / Education / GT Score: 32 / GED / 104 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92F10, Petroleum Supply Specialist / 6 years, 8 months, 13 days d. Prior Service / Characterizations: ARNG, 21 August 2000 – 31 March 2003 / GD RA, 8 September 2000 – 10 January 2002 / HD (Concurrent Service) USARCG, 31 March 2003 – 13 October 2008 / NIF RA 14 October 2008 – 21 October 2010 / HD e. Overseas Service / Combat Service: Hawaii, SWA / Afghanistan (14 March 2010 – 27 February 2011) f. Awards and Decorations: ACM-CS, MUC, AGCM, NDSM, GWOTSM, ASR, OSR, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The Charge Sheet as described in previous paragraph 3c. Memorandum, subject: Request for Reconsideration of Discharge in Lieu of Court-Martial [Applicant], dated 24 October 2012, reflects the applicant’s defense counsel explained the circumstances surrounding the Charges and Specifications. The defense counsel indicated the applicant snapped and put the spouse in a rear naked choke hold and the applicant’s mind went into a dissociative state. The applicant was seen by three doctors regarding the incident and because the applicant did not remember what happened, the doctors stated the amnesia was likely caused by the applicant’s alcohol abuse, prior trauma as a child, the applicant’s inability to handle stress, and the kick to the head while the applicant was choking the spouse. The applicant’s statement, in support of the request for Chapter 10, undated, describes the applicant’s childhood, as a child of a broken home and moving into the projects; being molested by a neighbor’s son at the age of 5 years old; the experiences with an unfaithful spouse and a divorce; problems with a second marriage to C. F.; prior service in the Army and the Army National Guard; and mental health and alcohol-related issues, admitted in Samaritans mental health unit and an alcohol rehabilitation program. i. Lost Time / Mode of Return: None j. Applicant Provided and/or AMHHR Listed PTSD / TBI / Other Behavioral Health Conditions: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with continuation sheet; two character references; Congressional documents. 6. POST SERVICE ACCOMPLISHMENTS: The applicant received a college degree, rebuilt the relationship with the children, remarried, and became a productive member of society. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities’ last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember’s date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. (6) 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.) (7) 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 a 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 applicant contends mental health issues affected behavior which led to the discharge. The applicant’s Army Military Human Resource Record (AMHRR) contains no documentation of mental health diagnosis. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention the discharge resulted from any medical condition. The applicant provided third party statements attesting to a change in the applicant’s behavior, particularly after the deployment to Afghanistan. The AMHRR is void of a mental status evaluation. The Board's Medical Advisor reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found the applicant was diagnosed with Adjustment Disorder and PTSD The applicant contends if the applicant would have received mental health assistance earlier, the incident which led to the discharge could have been prevented. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service, including a combat tour. The applicant contends receiving a college degree, rebuilding the relationship with the children, remarrying, and becoming a productive member of society. 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 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 the applicant’s Adjustment Disorder and PTSD may mitigate the applicant’s discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant’s Adjustment Disorder and PTSD existed during military 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 the applicant’s Adjustment Disorder and PTSD do not mitigate the applicant’s basis of separation - taking indecent liberties in physical presence of a child, physical intimate partner violence, and making a threat to kill; while angry outbursts can be associated with PTSD, aggression/assaultive behavior is not a symptom of Adjustment Disorder. Further, the medical evidence indicates that the violence the applicant perpetrated on the applicant’s spouse was the result of a dissociative episode. The Board Medical Advisor found that it is more likely than not that the violence against the applicant’s wife was the result of excessive alcohol consumption as evidenced by a significant history of drinking before the military, before and after deployment, and two ASAP referrals. While substance usage may be related to PTSD, violent acts following substance usage has no nexus with the applicant’s BH condition. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant’s Adjustment Disorder and PTSD do not outweigh the applicant’s medically unmitigated basis of separation – taking indecent liberties in physical presence of a child, physical intimate partner violence, and making a threat to kill. b. Response to Contention(s): (1) The applicant contends mental health issues affected behavior which led to the discharge. The Board liberally considered this contention and the Board determined that the applicant’s Adjustment Disorder and PTSD do not outweigh the applicant’s medically unmitigated basis of separation – taking indecent liberties in physical presence of a child, physical intimate partner violence, and making a threat to kill. The Board also considered the totality of the applicant’s record, including the applicant’s BH conditions and determined that an upgrade is not warranted due to the seriousness of the applicant’s misconduct. (2) The applicant contends if the applicant would have received mental health assistance earlier, the incident which led to the discharge could have been prevented. The Board considered this contention non-persuasive during its deliberations. The Board determined it was more likely than not that the violence against the applicant’s spouse was the result of excessive alcohol consumption, a circumstance for which the applicant was referred to ASAP twice. (3) The applicant contends good service, including a combat tour. The Board 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 taking indecent liberties in physical presence of a child, physical intimate partner violence against C.F., and making a threat to kill C.F, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (4) The applicant contends receiving a college degree, rebuilding the relationship with the children, remarrying, and becoming a productive member of society. The Board considered the applicant’s post-service accomplishments and determined that the applicant’s post service accomplishments do not warrant a discharge upgrade based on the severity of the applicant’s offenses. (5) The third party statements provided with the application speak highly of the applicant. While the third party statements were considered by the Board, the Board determined the applicant’s service was not consistent with the Army’s standards for acceptable personal conduct and performance of duty by military personnel. The third party statements do not outweigh the severity of the applicant’s 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 Adjustment Disorder did not outweigh the applicant’s medically unmitigated basis of separation– taking indecent liberties in physical presence of a child, physical intimate partner violence against C.F., and making a threat to kill C.F. The Board also considered the applicant’s contentions of impropriety relating to the delay in the applicant’s receiving mental health treatment and found that there was no evidence of arbitrary or capricious actions warranting a discharge upgrade. Finally, the Board considered the applicant’s contentions of inequity, including the applicant’s good service, combat tour, and post-service accomplishments and determined that the totality of the applicant’s record does not warrant a discharge upgrade. 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. Therefore, the applicant’s UOTH was proper and equitable as the applicant’s misconduct fell below that level of satisfactory service warranting a GD or meritorious service warranted for an upgrade to HD. (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 AR20210002708 1