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: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to an honorable and a change to the narrative reason and SPD code. The applicant seeks relief contending, in effect, during the time of the incident, the applicant was suffering a great mental and emotional stress. The applicant was diagnosed with PTSD, which involved multiple symptoms to include behavioral impulse control. The applicant’s mental state was down played by the command to pursue a special court-martial. The applicant deployed numerous times and each time after 2011, the applicant sought mental help and was misdiagnosed, which is annotated in the medical files. The Department of Veterans Affairs diagnosed and confirmed the Traumatic Brain Injury and PTSD condition and the applicant has been taking the proper medication and psychiatric care. The applicant had not had any tarnished marks in the career until the mental issue was exacerbated due to not having any down time. The applicant made a mistake during a time of extreme mental distress. The applicant was forcibly separated from the spouse and received no assistance or counseling from the unit. The applicant suffered mentally and financially and the incident would not have happened if the applicant was not placed in the situation. The applicant served honorably as a paratrooper during the 13 years in service. The applicant desires to finish the seven years of service or the opportunity to obtain government employment. In a records review conducted on 20 May 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: 16 July 2018 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 5 April 2018, the applicant was charged with: The Charge, violating Article 121, UCMJ, The Specification: Did on 28 February 2017, steal money, government property, of a value over $500, the property of the Unites States. (2) Legal Consultation Date: NIF (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: The immediate commander’s recommendation is not in file. The battalion commander recommended under other than honorable conditions discharge. (5) Separation Decision Date / Characterization: 13 June 2018 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 May 2017 / 6 years b. Age at Enlistment / Education / GT Score: 31 / Associate’s Degree / 112 c. Highest Grade Achieved / MOS / Total Service: E-6 / 13B1P 5W 1K, Cannon Crewmember / 12 years, 9 months, 6 days d. Prior Service / Characterizations: RA, 11 October 2005 – 14 September 2007 / HD RA, 15 September 2007 – 26 May 2012 / HD RA, 27 May 2012 – 17 May 2017 / HD e. Overseas Service / Combat Service: Germany, SWA / Afghanistan (11 May 2007 – 25 July 2008; 22 November 2009 – 4 November 2010; 22 February 2012 – 4 September 2012) f. Awards and Decorations: ARCOM-5, AAM-3, MUC-2, VUA, NDSM, GWOTSM, ACM- 2CS, NCOPDR-2, ASR, OSR-4, NATOMDL, CAB g. Performance Ratings: 27 February 2017 – 26 February 2018 / Qualified h. Disciplinary Action(s) / Evidentiary Record: Charge Sheet as described in previous paragraph 3c. Enlisted Record Brief, dated 17 July 2018, reflects the applicant was reduced to E-1 on 13 June 2018. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided Department of Veterans Affairs Notes, dated 8 December 2020, reflecting the applicant was diagnosed with PTSD, chronic, moderate; and, Major Depressive Disorder, moderate. The applicant provided VA Disability Ratings, dated 14 December 2020, reflecting the applicant was rated 30 percent service-connected disability for Other Specified Trauma and Stressor Related Disorder; 10 percent for Traumatic Brain Injury; and, 50 percent for Obstructive Sleep Apnea. The applicant was awarded a combined disability rating of 100 percent. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; two DD Forms 293; third party statement; VA medical documents; VA Rating Disability Ratings; VA letter. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities’ last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember’s date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. Eligibility: Ineligible unless a waiver is granted. RE-4 Applies to: Person separated from last period of service with a nonwaivable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant’s record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of AMHRR confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The under other than honorable conditions discharge received by the applicant was appropriate under the regulatory guidance. The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 10, AR 635-200, with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “In Lieu of Trial by Court-Martial,” and the separation code is “KFS.” Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214 and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2- 3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends the SPD code should be changed. SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations. The SPD code specified by Army Regulations for a discharge under Chapter 10, is “KFS.” The applicant contends PTSD and family issues affected behavior, which ultimately led to the discharge and the VA diagnosed the applicant with PTSD. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant’s AMHRR contains no documentation of PTSD diagnosis. The applicant provided medical documents reflecting the applicant was diagnosed with PTSD, chronic; moderate; and Major Depressive Disorder and a received a VA rating of 30 percent service-connected disability for Other Specified Trauma and Stressor Related Disorder; 10 percent for Traumatic Brain Injury; and, 50 percent for Obstructive Sleep Apnea. The applicant was awarded a combined disability rating of 100 percent. The applicant contends not receiving any medical treatment or assistance from the command regarding the mental issue and the command downplayed the condition to pursue court-martial. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service, including three combat tours. The third party statement provided with the application speak highly of the applicant and recognizes the applicant’s good service. The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. The applicant desires to rejoin the Military Service. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, the applicant was appropriately assigned an RE code of “4.” An RE code of “4” cannot be waived, and the applicant is no longer eligible for reenlistment. 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 DoD and VA medical records, applicant submissions and third party statements, and found the applicant was diagnosed with Adjustment Disorder, Unspecified Anxiety Disorder, TBI, Neurosis, Depression, and self-asserted PTSD could potentially mitigate a 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, Unspecified Anxiety Disorder, TBI, Neurosis, Depression, and self-asserted PTSD existed during service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor determined that the applicant’s Adjustment Disorder, Unspecified Anxiety Disorder, TBI, Neurosis, Depression, and self-asserted PTSD do not mitigate the basis of separation as there is no association between any of applicant’s BH conditions and the theft that led to applicant’s separation since none of these conditions interfere with the 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 concurred with the opinion of the Board’s Medical Advisor, a voting member, and determined applicant’s Adjustment Disorder, Unspecified Anxiety Disorder, TBI, Neurosis, Depression, and self-asserted PTSD do not outweighed the basis for applicant’s separation – steal money, government property, of a value over $500. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs to be changed. The Board considered this contention and determined the applicant’s Adjustment Disorder, Unspecified Anxiety Disorder, TBI, Neurosis, Depression, and self-asserted PTSD do not outweigh the applicant’s basis for separation - – steal money, government property, of a value over $500 warranting a change to the applicant’s narrative reason. Therefore, the discharge is proper and equitable. (2) The applicant contends the SPD code should be changed. The Board considered this contention the applicant’s Adjustment Disorder, Unspecified Anxiety Disorder, TBI, Neurosis, Depression, and self-asserted PTSD do not outweigh the applicant’s basis for separation – steal money, government property, of a value over $500 warranting a change to the applicant’s SPD warranting a change to the applicant’s SPD code. Therefore, the discharge is proper and equitable. (3) The applicant contends PTSD and family issues affected behavior and ultimately led to the discharge. The Board considered this contention and the applicant’s during proceedings and determined that the applicant’s self-asserted PTSD and the applicant’s claim of family issues do not outweigh the applicant’s basis of separation - stealing money and government property of a value over $500. Therefore, the discharge is proper and equitable. (4) The applicant contends not receiving any medical treatment or assistance from the command regarding the mental issue and the command downplayed the condition to pursue court-martial. The Board voted after considering the contention and found no evidence of the Command acting in an arbitrary or capricious manner. In this case, the Board determined that there is insufficient evidence to support this claim and the discharge is proper and equitable. (5) The applicant contends good service, including three combat tours. 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. By stealing money and government property of a value over $500, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (6) The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. (7) The applicant desires to rejoin the Military Service. Recruiters can best advise a former service member as to the Army’s needs at the time and are required to process waivers of reentry eligibility (RE) codes, if appropriate. 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, the Board determined the applicant’s Adjustment Disorder, Unspecified Anxiety Disorder, TBI, Neurosis, Depression and self-asserted PTSD did not outweigh the applicant’s unmitigated basis for separation - stealing money and government property of a value over $500. The Board also considered the applicant’s contention of impropriety of not receiving any medical treatment or assistance 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 for the applicant’s good service, including three combat and family issues 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. 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. 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 AR20210002975 1