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 general (under honorable conditions). The applicant, through counsel, requests an upgrade to honorable. The applicant seeks relief contending, in effect, the discharge should be upgraded based on propriety and equity. The applicant served four years, attaining the rank of specialist, including one combat deployment. The applicant states the applicant was evaluated by an independent doctor stating the applicant had Post Traumatic Stress Disorder (PTSD) and Acute Stress Disorder after returning from Afghanistan. Up until PTSD took control, the applicant states the applicant was an outstanding Soldier. The applicant’s states the applicant’s performance was impeccable and certainly headed nowhere but up. The applicant claims that it is likely if the applicant had received the support and help needed to overcome this disorder, the applicant would have continued to serve honorably and faithfully in the U.S. Army. The applicant claims that the applicant’s alcohol abuse was directly caused by PTSD and should not continue to carry the stigma of an under other than honorable discharge. The applicant claims that the Army failed during a time when the applicant needed the most support. Upon returning from Afghanistan, when the applicant states that the applicant began acting out and drinking to self-medicate the symptoms of PTSD, the applicant claims the applicant was punished and separated without any proper mental evaluation. The applicant contends being scheduled for a Medical Board evaluation of some type, but one month before the scheduled evaluation, the applicant was arrested for some form of sexual crime but never convicted. The applicant claims that the applicant did not receive a further medical or psychiatric evaluation, and there was no forensic evaluation to establish the applicant’s mental health condition. The applicant claims that there was never a process to establish the applicant’s medical and psychiatric impairments could interfere with judgment and influence behavior. The applicant claims that the applicant was never evaluated for TBI, which could complicate and exacerbate chronic PTSD, and was discharged without proper medical and psychiatric evaluation. The applicant states the applicant never had a Neuropsychological Evaluation or a 706-sanity- evaluation. The applicant also requests a change of the narrative reason to Expiration of Term of Service or Secretarial Authority. In a records review conducted on 18 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 / General (Under Honorable Conditions) b. Date of Discharge: 17 September 2012 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): NIF (2) Legal Consultation Date: NIF (3) Basis for Separation: NIF (4) Recommended Characterization: NIF (5) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 September 2008 / 4 years b. Age at Enlistment / Education / GT Score: 23 / Some college / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 91C10, Utilities Equipment Repairer / 3 years, 11 months, 25 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (31 December 2008 – 14 December 2009) f. Awards and Decorations: AAM, MUC, AGCM, NDSM, ACM-2CS, GWOTSM, ASR, OSR, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The applicant provided a redacted CID Investigation Report Final dated 11 July 2012, reflecting the investigation established probable cause to believe the applicant committed the listed offense when threatened to distribute sexually explicit images of Mrs., [redacted] if [Mrs. [redacted] did not engage in sexual activities with the applicant. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a mental health evaluation conduct by Mr. L., a Board Certified Psychiatrist, dated 12 October 2017, reflecting the applicant has a neuropsychiatric disorder, chronic Posttraumatic Stress Disorder, is service connected and was manifest before any overt behavioral dysfunction and while the applicant was on active duty before being placed in the WTB. The applicant was not fully evaluated and treated and it is more likely than not the neuropsychiatric impairment was a major contributor to any behavioral dysfunction and subsequent impaired judgment. The Physical Evaluation Board found the applicant was physically unfit and recommends a rating of 60 percent and the Soldier’s disposition be placed on TDRL and with a reexamination during January 2014. The applicant was diagnosed with PTSD with a 50 percent rating. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Legal brief; self-authored statement; redacted CID Report and two letters of support. 6. Post Service Accomplishments: The applicant is working and contributing to the community and has held a steady job. 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 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) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (3) 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. (4) 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. (5) 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. (6) 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. (7) 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.) (8) 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-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 applicant’s AMHRR is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. The applicant’s AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 10, by reason of In Lieu of Trial by Court-Martial, with a characterization of service of general (under honorable conditions). The evidence of 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 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 having PTSD and TBI. The applicant’s medical records indicate that the applicant received treatment for PTSD and OBHI. The applicant provided a mental health evaluation conduct by Mr. L., a Board Certified Psychiatrist dated 12 October 2017, reflecting the applicant has a neuropsychiatric disorder, chronic Posttraumatic Stress Disorder, is service connected and was manifest before any overt behavioral dysfunction and while the applicant was on active duty before being placed in the WTB. The applicant was not fully evaluated and treated and it is more likely than not the neuropsychiatric impairment was a major contributor to any behavioral dysfunction and subsequent impaired judgment. The applicant’s medical records reflect that the applicant’ received treatment for the applicant’s BH conditions. The applicant contends being punished and separated without any proper mental evaluation. The applicant’s medical records reflect that the applicant’ received treatment for the applicant’s BH conditions. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends being scheduled for a Medical Board evaluation. AR 635-40 and AR 635-200 do not preclude a disciplinary separation while undergoing a medical board. Appropriate regulations stipulate separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board and is subsequently processed for an involuntary administrative separation or referred to a court-martial for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical process is stopped, and the board report is filed in the member’s medical record. The applicant contends applicant never had a Neuropsychological Evaluation or a 706-sanity- evaluation to determine whether the applicant possessed the required mens rea to commit the offense or determine if the applicant’s psychiatric issues may have led to the allegations and service as evidence in mitigation. 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. The applicant contends good service, including a combat tour. The applicant contends being employed and volunteering in the community. 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 prior to joining the Army and the difficulties after being discharged. 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 Acute Reaction to Stress, Adjustment Disorder, PTSD, Nightmare Disorder, and Panic Disorder without Agoraphobia, could potentially mitigate a discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant’s Acute Reaction to Stress, Adjustment Disorder, PTSD, Nightmare Disorder, and Panic Disorder without Agoraphobia occurred during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. After applying liberal consideration, the Board's Medical Advisor opined that applicant’s PTSD and other BH disorders do not mitigate the applicant’s Board accepted basis for separation - threatening to distribute sexually explicit images of Mrs., [redacted] if [Mrs. [redacted] did not engage in sexual activities with the applicant as the applicant’s behavior appears to be willful and a conscious decision which is not part of the sequela of symptoms associated with PTSD or the applicant’s other BH disorders. (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 that the applicant’s Acute Reaction to Stress, Adjustment Disorder, PTSD, Nightmare Disorder, and Panic Disorder without Agoraphobia do not outweighed the unmitigated Board accepted basis for applicant’s separation – threatening to distribute sexually explicit images of Mrs., [redacted] if [Mrs. [redacted] did not engage in sexual activities with the applicant. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs to be changed. The Board considered this contention, including the medical evidence, length of service and combat service, and the applicant’s post-service accomplishments and determined the applicant narrative reason is appropriate given the seriousness of the applicant’s offense and because the applicant requested and the convening authority approved a Chapter 10, AR 635-200, in lieu of trial by court-martial. (2) The applicant contends having PTSD and TBI. The Board liberally considered this contention and determined the applicant’s PTSD or OBH conditions did not outweigh the applicant’s Board accepted unmitigated basis of separation - threatening to distribute sexually explicit images of Mrs., [redacted] if [Mrs. [redacted] did not engage in sexual activities with the applicant. Thus, the discharge is proper and equitable. (3) The applicant contends being punished and separated without any proper mental evaluation. The Board considered this contention and determined that the applicant’s medical records reflect that the applicant did received treatment and evaluations for the applicant’s BH conditions. Therefore, no change is warranted. (4) The applicant contends being scheduled for a Medical Board evaluation. The Board considered this contention and determined that, despite the applicant’s referral to an MEB, in accordance with AR 635-200, paragraph 1-34d completion of the Physical Evaluation Board is at the convening authority’s discretion pending the outcome of the administrative separation. In this case, the convening authority determined that the applicant’s Chapter 10 administrative separation took precedence over the applicant’s medical proceedings. Therefore, the discharge is proper and equitable. (5) 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. By threatening to distribute sexually explicit images of Mrs., [redacted] if [Mrs. [redacted] did not engage in sexual activities with the applicant, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation (6) The applicant contends being employed and volunteering in the community. The Board this contention and determined that that the applicant’s post service accomplishments did not outweigh the applicant’s basis for separation - threatening to distribute sexually explicit images of Mrs., [redacted] if [Mrs. [redacted] did not engage in sexual activities with the applicant. (7) The applicant contends applicant never had a Neuropsychological Evaluation or a 706-sanity-evaluation to determine whether the applicant possessed the required mens rea to commit the offense or determine if the applicant’s psychiatric issues may have led to the allegations and service as evidence in mitigation. The Board considered this contention and determined that the applicant requested, in consultation with legal counsel, a Chapter 10 discharge. Therefore, the applicant’s discharge is proper and equitable. 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 applicant’s Acute Reaction to Stress, Adjustment Disorder, PTSD, Nightmare Disorder, and Panic Disorder without Agoraphobia did not outweigh the applicant’s Board accepted basis of separation - threatening to distribute sexually explicit images of Mrs., [redacted] if [Mrs. [redacted] did not engage in sexual activities with the applicant. 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 AR20210003019 1