1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: Yes 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant, through counsel, seeks relief contending, in effect, the applicant was suffering from multiple diagnosed mental health conditions, including PTSD, when the applicant went AWOL. The applicant’s mental health conditions are directly connected to the time in service and mitigate and excuse the applicant’s misconduct. The applicant’s application is entitled to liberal consideration under the Hagel and Kurta Memo. The applicant endured a year-long deployment to Afghanistan and experienced the horrors of combat first-hand. The applicant served with courage and honor, and was aptly decorated for heroic efforts. The applicant was mentally and emotionally scarred by the experiences in Afghanistan, which entailed witnessing the deaths of several service members, engaging in firefights, and corpse disposal duties. The applicant’s erratic and troubling behavior is not indicative of the applicant’s character; rather, the actions are medically recognized symptoms of PTSD. The applicant chose to be discharged with an under other than honorable conditions in lieu of a Court-Martial, which has precluded the applicant from the vital VA mental health care the applicant desperately needs in order to make a full recovery to a fruitful civilian life. In the applicant’s case, the mental health condition outweighs the misconduct. After developing Adjustment Disorder and PTSD, the applicant’s in-service behavior began to deteriorate. A few instances of misconduct exhibited were directly tied to this mental health conditions. Under new directives, this Board should view the applicant’s PTSD as a mitigating factor and upgrade the applicant’s discharge status to honorable, change the narrative reason to Secretarial Authority and amend the separation code. In a records review conducted on 19 April 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: 1 March 2012 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 20 January 2012, the applicant was charged with: Violating Article 86, UCMJ, for being AWOL: Specification 1: On or about 6 October 2010, without authority, the applicant was absent from unit and did remain so absent until on or about 12 October 2010. Specification 2: On or about 15 October 2010, without authority, the applicant was absent from unit and did remain so absent until on or about 3 January 2012. (2) Legal Consultation Date: 1 February 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 (5) Separation Decision Date / Characterization: 14 February 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 February 2008 / 3 years, 17 weeks b. Age at Enlistment / Education / GT Score: 21 / GED / 116 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 2 years, 9 months, 22 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (14 January 2009 – 31 December 2009) f. Awards and Decorations: AGCM, NDSM, ACM-2CS, GWOTSM, ASR, OSR, NATOMDL, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Seven Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY)” to “Absent Without Leave (AWOL),” effective 20 April 2010; From “AWOL” to “PDY,” effective 24 April 2010; From “PDY,” to “AWOL,” effective 6 October 2010; From “AWOL,” to “PDY,” effective 12 October 2010; From “PDY,” to “AWOL,” effective 15 October 2010; From “AWOL,” to “Dropped From Rolls (DFR),” effective 15 November 2010; and, From “DFR,” to “PDY,” effective 3 January 2012. CG Article 15, dated 21 May 2010, for being absent from unit on or about 20 April 2010 and did remain so absent until on or about 24 April 2010; with intent to deceive, make to SFC J. M. a false official statement, on or about 3 May 2010; and for being derelict in the performance of duties on or about 30 April 2010. The punishment consisted of a reduction to E-3; forfeiture of $423 pay per month for one month; and, extra duty and restriction for 14 days. FG Article 15, dated 19 August 2010, for willfully disobeying a lawful order from 1LT J. C., to not drive a vehicle until issued a state driver’s license, on or about 14 July 2010; and violating a general order by wrongfully having a female in the barracks room during prohibited hours on or about 14 July 2010. The punishment consisted of a reduction to E-1; forfeiture of $723 pay per month for two months (suspended); and, extra duty and restriction for 45 days. Numerous Developmental Counseling Forms, for various acts of misconduct. Charge sheet as described in paragraph 3c(1). i. Lost Time / Mode of Return: 1 year, 2 months, 26 days AWOL, 6 October 2010 – 12 October 2010 / NIF AWOL, 15 October 2010 – 3 January 2012 / Surrendered to Military Authorities j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided the following: Health Record, dated 11 May 2010 reflects the following diagnoses: Axis I: Adjustment Disorder with anxiety and depression; Axis II: Deferred; Axis III: None at this time; Axis IV: Conflict with the family, distance from the applicant’s mother; Axis V: GAF: 60-65. Emergency Department Record, Eastern Maine Medical Center, dated 1 March 2015, reflects the applicant was diagnosed with: Altered mental status, intentional overdose, narcotic overdose, benzodiazepine overdose, hypotension. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; attorney brief, Affidavit, DD Form 214; 10th Mountain New Release; Health Record; EMMC Record; Acadia Hospital Psychiatric Evaluation; Memorandum for Secretaries of the Military Departments. 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) 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. (5) 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.) 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 of 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 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) 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 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 suffering from multiple diagnosed mental health conditions including PTSD. The applicant provided several documents which supports a diagnosis of in-service depression. Health Record, dated 11 May 2010, reflects the following diagnoses: Axis I: Adjustment Disorder with anxiety and depression; Axis II: Deferred; Axis III: None at this time; Axis IV: Conflict with the family, distance from the applicant’s mother; Axis V: GAF: 60-65. Emergency Department Record, Eastern Maine Medical Center, dated 1 March 2015, reflects the applicant was diagnosed with: Altered mental status, intentional overdose, narcotic overdose, benzodiazepine overdose, hypotension. The record does not contain a Mental Status Evaluation. The applicant contends harassment and discrimination by members of the chain of command. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. 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 an upgrade of the discharge would allow veterans benefits. Eligibility for veteran’s benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has BH diagnosis of Adjustment Disorder (AD) and PTSD that could mitigate applicant’s basis for separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found in-service BH diagnosis of AD and service-connected PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. It is the opinion of the Board’s Medical Advisor, after applying liberal consideration, that the applicant’s PTSD mitigates the AWOL but neither the PTSD nor AD mitigates the other misconduct that was the basis for applicant’s separation– having an overnight, opposite gendered visitor in the barracks for weeks consecutively and driving without a license. (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, that the available evidence supported a conclusion that the applicant’s PTSD and AD did not outweigh the unmitigated basis for applicant’s separation. b. Response to Contention(s): (1) The applicant contends the narrative reason/SPD for the discharge needs changed. The Board determined that the applicant’s unmitigated misconduct of having an overnight, opposite gendered visitor in the barracks for weeks consecutively and driving without a license did not reach the level of the current request of Secretarial Authority, and the applicant was properly discharged with a Chapter 10, which the applicant requested during the discharge process. (2) The applicant contends suffering from multiple diagnosed mental health conditions including PTSD and harassment and discrimination by members of the chain of command. The Board liberally considered this contention, but concluded that applicant’s BH conditions only partially mitigated applicant’s basis for separation, and separately concluded that the weight of the evidence did not support applicant’s contention of harassment or discrimination that affected applicant’s discharge. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant’s time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. In this case, the Board determined that the applicant’s discharge based on a Chapter 10 discharge was both proper and equitable. (3) The applicant contends good service, including a combat tour. The Board considered this contention and applicant’s service, including a combat tour, but determined the applicant’s discharge was appropriate because the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By having an overnight, opposite gendered visitor in the barracks for weeks consecutively and driving without a license, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (4) The applicant contends an upgrade of the discharge would allow veterans benefits. The Board determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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 Adjustment Disorder and PTSD did not mitigate the offenses of having an overnight, opposite gendered visitor in the barracks for weeks consecutively and driving without a license, and the discharge was both proper and equitable. 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, as the reason the applicant was discharged was both proper and equitable, and requested by the applicant at the time of discharge. (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 AR20210003041 1