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, the command told the applicant to cancel pending psychology appointments to go to the field. The applicant was receiving treatment for mental health issues related to a deployment in Afghanistan. The applicant had just started receiving treatment and did not believe canceling appointments would be helpful for the applicant’s mental well-being, but the applicant was told by leadership to cancel the appointments. The applicant was very upset with the command because they made the applicant cancel needed mental health appointments. The applicant provided evidence of a 50 percent service-connected disability for Post-traumatic stress disorder (PTSD), and 10 percent for traumatic brain injury (TBI). The applicant’s spouse cheated while the applicant was deployed, and were later divorced in 2012. The applicant’s best friend was also killed during a deployment while right next to the applicant. The applicant was forced to declare bankruptcy as a result of the discharge. The applicant served honorably and was a good Soldier, and just wanted the command to give the applicant time to process the traumatic life events. Instead, the applicant was harassed and unjustly disrespected by members in the chain of command. The applicant was separated within five days of being informed of the approved discharge decision. The applicant was a correctional officer from August 2014 until September 2016, and has been attending Marquette University since September 2015 with an overall GPA of 3.2. b. Board Type and Decision: In a records review conducted on 26 July 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: 29 July 2013 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 4 June 2013, the applicant was charged with: Charge I: Violating Article 86, UCMJ, Specification: On 3 May 2013, for being AWOL and remained absent until 21 May 2013. Charge II: Violating Article 91, UCMJ, Specifications 1 and 2: On 12 April 2013, disrespectful in language toward SSG A. F., a Non-commissioned officer (NCO), then known by SPC A. J. R. to be a NCO, by saying to SSG A. F., “I will not cancel my behavioral health appointments that’s fucking bullshit you don’t understand I have to see them and talk to them and don’t make anymore? Yeah, right I can see behavioral health you guys do not have the right to stop me! SGT F. I’m on my way to work right now,” or words to that effect. SSG J. M. H., a NCO, then known by the applicant to be a NCO, by saying, “Fucking motherfuckers,” “Fucking bullshit,” or words to that effect while leaving the Troop First Sergeant’s office. Charge III: Violating Article 92, UCMJ, Specification: On 12 April 2013, for wrongfully fail to obey a lawful order issued by SSG J. M. H. to stop and go to parade rest, an order which it was the applicant’s duty to obey, ignoring SSG J. M. H. and continuing to walk away from SSG J. M. H. Charge IV: Violating Article 134, UCMJ, Specification: On 3 May 2013, wrongfully communicate to SPC M. F. and SPC S. K. a threat to injure SSG H. by punching SSG H. if SSG H. counsels the applicant, and conduct was to the prejudice of good order and discipline the armed forces. (2) Legal Consultation Date: 19 June 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: NIF (5) Separation Decision Date / Characterization: 18 July 2013 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 January 2011 / 6 years, 16 weeks b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 112 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 2 years, 6 months, 9 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (1 October 2011 – 13 July 2012) f. Awards and Decorations: ACM-CS, ARCOM, NDSM, GWOTSM, ASR, OSR, NATOMDL, CIB g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Three Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY)” to “Failure to Report (FTR),” effective date 3 May 2013; From “FTR” to “Absent without Leave (AWOL),” effective date 4 May 2013; and, From “AWOL,” to “PDY,” effective date 21 May 2013. Two Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 17 days: (AWOL, 4 May 2013 – 20 May 2013 / NIF j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation (MSE), dated 11 June 2013, 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. The applicant was diagnosed with: alcohol dependence, with physiological dependence and antisocial personality disorder. The applicant provided a copy of a VA disability rating decision, dated 22 July 2015, reflecting the applicant was rated 50 percent disability for PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; two third-party letters; Unofficial Undergraduate Transcript; VA Rating Decision Letter. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states being a correctional officer; and, now attending Marquette University. 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) Paragraph10-1 provides 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: 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 good service, including a combat tour. The Board considered the service accomplishments and the quality of service. The applicant contends family issues and the death of a best friend affected behavior, and ultimately caused the discharge. 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 contends harassment and being unjustly disrespected by members of the chain of command. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment or disrespect. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends being diagnosed with PTSD by the VA. The applicant provided a copy of a VA disability rating decision, dated 22 July 2015, reflecting the applicant was rated 50 percent disability for PTSD. The applicant also provided several medical documents indicating a diagnosis of alcohol dependence, with physiological dependence and antisocial personality disorder. The AMHRR shows the applicant underwent a MSE on 11 June 2013, which indicates the applicant was mentally responsible and recognized right from wrong. The MSE was considered by the separation authority. 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, Antisocial Personality Disorder, Anxiety, and PTSD may mitigate the applicant’s discharge. The applicant claimed a 10% disability due to TBI. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found Adjustment Disorder, Antisocial Personality Disorder, Anxiety, and PTSD existed 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 the applicant’s Adjustment Disorder, Antisocial Personality Disorder, Anxiety, and PTSD do not mitigate the applicant’s basis of separation – AWOL, disrespect towards NCOs, disobedience, and communicating a threat. While in some cases PTSD may mitigate AWOL, disrespect, and disobedience, the Board Medical Advisor concluded that the applicant’s misconduct is more likely the result of underlying Antisocial Personality Disorder because the applicant’s medical records indicate that the applicant had a history of Antisocial Personality Disorder symptomology since the applicant’s youth and was receiving outpatient treatment prior to deployment. The Board Medical Advisor also opined that the applicant’ Adjustment Disorder, Antisocial Personality Disorder, Anxiety, PTSD and TBI do not mitigate the applicant’s offense of communicating a threat as there is no natural sequela associated with PTSD. (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, Antisocial Personality Disorder, Anxiety, and PTSD do not outweighed the applicant’s medically unmitigated basis for applicant’s separation – AWOL, disrespect to NCOs, disobedience, and communicating a threat. Furthermore, the Board found that the applicant’s medical records included evidence of the applicant’s difficulty with reacting to stressors – specifically gang activity, fighting, incarceration, anger, and impulsivity – began as a youth, prior to military service, and continued in service. b. Response to Contention(s): (1) The applicant contends good service, including a combat tour. The Board considered this contention and 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. The applicant’s misconduct– AWOL, disrespect to NCOs, disobedience, and communicating a threat –diminished the quality of service below that meriting an honorable discharge at the time of separation. (2) The applicant contends family issues and the death of a best friend affected behavior, and ultimately caused the discharge. The Board considered this contention, but determined that the Army has many legitimate avenues available to service members requesting assistance with grief and family issues, 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 basis for applicant’s separation – AWOL, disrespect to NCOs, disobedience, and communicating a threat – is not an acceptable response to dealing with grief and family issues, thus the applicant was properly and equitably discharged. (3) The applicant contends harassment and being unjustly disrespected by members of the chain of command. The Board considered this contention, however the Board determined that there is no evidence in official records, and the applicant did not provide supporting documentation to provide merit to the claim. Ultimately, the Board determined that the assertion alone does not warrant a discharge upgrade due to the severity of the offenses. (4) The applicant contends being diagnosed with PTSD by the VA. The Board liberally considered this contention, and the Board determined that the applicant’s PTSD and OBH conditions do not outweigh the applicant’s medically unmitigated basis for applicant’s separation – AWOL, disrespect to NCOs, disobedience, and communicating a threat. Furthermore, the Board found that the applicant’s medical records included evidence of the applicant’s difficulty with reacting to stressors – specifically gang activity, fighting, incarceration, anger, and impulsivity – began as a youth, prior to military service, and continued in service. The Board also considered the applicant’s BH conditions when weighing the totality of the applicant’s record and determined an discharge upgrade is not warranted. 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 Adjustment Disorder, Antisocial Personality Disorder, Anxiety, and PTSD not outweigh the applicant’s medically unmitigated basis for applicant’s separation – AWOL, disrespect to NCOs, disobedience, and communicating a threat. The Board also considered the applicant’s contentions of impropriety relating to harassment and being unjustly disrespected by members of the chain of command 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 relating to the applicant’s good service, including a combat tour and the applicant’s medical conditions 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 General Discharge was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to Honorable Discharge. (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 AR20210002722 1