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 honorable. The applicant seeks relief contending, in effect, the discharge is improper because it was based on an “outcast” search of the vehicle. A Soldier used the chain of command to set up the applicant, which caused the Military Police Investigators to search the applicant’s privately owned vehicle. The command placed the applicant in confinement from January to April, prior to the discharge. In a records review conducted on 7 April 2022, and by a 3-2 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: 19 April 2018 c. Separation Facts: (1) Date and Charges Preferred (DD Forms 458, Charge Sheet): On 22 January 2018 (Original Charges) and on 27 February 2018 (Additional Charges), the applicant was charged with: Charge I: Violating Article 86, UCMJ: The Specification: On 17 January 2018, without authority, fail to go at the time prescribed to the appointed place of duty. Charge II: Violating Article 91, UCMJ: Specification 1: On 16 January 2018, willfully disobey a lawful order from First Sergeant D.M. to pack a bag to go to the field with the unit. Specification 2: On 17 January 2018, was disrespectful in language toward Sergeant K.K., by saying, What the fuck? Hell no! You’re telling me I can’t wear my own clothes? Who the fuck says that? I don’t give a fuck! This is fucking bullshit, ya’ll are tripping,” while SGT K.K. was reading a counseling statement to the applicant. Charge III: Violating Article 134, UCMJ: The Specification: On 11 January 2018, wrongfully communicate to Private E-2 T.T. a threat to injure, by shooting Specialist D.L., such conduct being to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. Additional Charge I: Violating Article 92, UCMJ: The Specification: On 18 January 2018, fail to obey a lawful order issued by Colonel K.M., by wrongfully possessing, within the containment area of Fort Stewart, GA, a privately owned firearm, which was not registered with the Fort Stewart Provost Marshal/Directorate of Emergency Services as required. Additional Charge II: Violating Article 112a, UCMJ: The Specification: Between 12 December 2017 and 10 January 2018, wrongfully use marijuana, a Schedule I controlled substance. (2) Legal Consultation Date: 20 March 2018 (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: 3 April 2018 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 May 2016 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 91 c. Highest Grade Achieved / MOS / Total Service: E-3 / 12B10, Combat Engineer / 1 year, 11 months, 18 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge Sheets as described in previous paragraph 3c. Confinement Order, dated 17 January 2018, reflects the applicant was placed in pretrial confinement for offenses under the UCMJ, to ensure the applicant would not flee and would not commit additional serious misconduct because lesser forms of restraint were inadequate. Checklist of Pretrial Confinement reflects the applicant was punished under Article 15, UCMJ, for failure to obey regulation on two occasions; false official statement on two occasions; failure to report; insubordinate conduct towards a noncommissioned officer on two occasions (21 and 22 July 2017). The punishment consisted of reduction to E-2 (suspended); forfeiture of $418 pay (suspended); extra duty for 14 days; and, an oral reprimand. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 4 April 2018, reflects the applicant was cleared for administrative separation. The applicant was mentally sound and able to appreciate any wrongfulness in conduct; conform conduct to requirements of the law; and, had the mental capacity to understand and participate in the board or other administrative proceedings. The applicant was diagnosed with: Adjustment Disorder. Report of Medical History, dated 5 April 2018, the examining medical physician noted in the comments section: Recent Events of chapter from Army and family issues increasing stress and anxiety. Seen by outpatient Behavioral Health (BH), encouraged to continue seeing BH. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 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 waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes. RE-4 applies to a person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years 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 under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends the discharge was improper because it was based on a set-up by a Soldier and the chain of command. The AMHRR reflects charges were preferred against and the applicant, in consultation with legal counsel, voluntarily requested discharge under AR 635- 200, Chapter 10, which was approved by the separation authority. The applicant underwent a mental status evaluation on 4 April 2018, which reflects the applicant was cleared for administrative separation. The applicant was mentally sound and able to appreciate any wrongfulness in conduct; conform conduct to requirements of the law; and, had the mental capacity to understand and participate in the board or other administrative proceedings. The applicant was diagnosed with: Adjustment Disorder. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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 applicant was diagnosed with an Adjustment Disorder that could mitigate the basis for applicant’s separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed in service with an Adjustment Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor, after applying liberal consideration, opined that applicant’s in-service diagnosis of an Adjustment Disorder was made after the misconduct occurred that led to the separation and was documented to be a condition that developed in response to the misconduct and subsequent consequences, therefore does not actually mitigate any of applicant’s misconduct that led to applicant’s separation. (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 did not support a conclusion that any of the applicant’s adjustment disorder outweighed the varied misconduct that provided the basis for applicant’s separation. b. Response to Contention(s): The applicant contends the discharge was improper because it was based on a set-up by a Soldier and the chain of command. The Board considered this contention non-persuasive during its deliberations; due to the numerous offenses listed in the Chapter 10 charges and that the weight of the evidence did not support this contention. c. The majority of 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 did not mitigate the offenses of FTR, disobedience, disrespect, marijuana use, communicating a threat, wrongful possession of a non-registered firearm, 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. (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 AR20210003071 1