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 was inequitable because it was based on incidental behavior, which occurred while the applicant was suffering from an undiagnosed service-connected mental health condition after several service-connected physical injuries. The applicant claims that depression and anxiety over the applicant’s physical injuries caused the applicant to act out violently, other than honorably, and counter to the orders of the chain of command and other legal authorities, which led directly to the uncharacteristic discharge from Army service. The applicant regrets the actions which led to the other than honorable discharge from the Army. The applicant claims that applicant has worked since then to come to grips with the mental and physical health so the applicant may move forward in an honorable manner. The applicant claims that applicant has struggled to deal with the disabilities at times since being discharged and has battled substance abuse as a result, although the applicant is now proud to be clean and clear of those self-medicating practices. The applicant claims that applicant has worked hard to obtain a bachelor’s degree and is now on the cusp of finishing a Master of Science in Public Policy. The applicant hopes to again serve the public in such a way which credits the applicant, family and country with honor. In a records review conducted on 10 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: 20 January 2012 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 7 December 2011, the applicant was charged with: Charge I: Violating Article 128, UCMJ Specification 1: Did on or about 8 October 2011, assault SGT G. N. H., SGT M. C. and SPC D. M. T. who then were and were then known by the accused to be persons then having and in the execution of military police duties, by lunging at them. Specification 2: Did on or about 1 December 2011, assault SFC R. D., who then was and was then known by the accused to be a noncommissioned officer of the United State Army, by grabbing SFC R. D. by the shirt and shoving SFC R. D. on the chest with the applicant’s hands and arms. Specification 3: Did on or about 8 October 2011, assault SGT G. N. H., who then was and was then known by the accused to be a person then having and in the execution of military police duties, by spitting on SGT G. N. H. Charge II: Violating Article 90, UCMJ: Specification 1: Did on or about 1 December 2011, strike CPT M. S. M., a superior commissioned officer, then known by the said applicant to be the superior commissioned officer, who was then in the execution of office, on the shoulder and chest with the applicant’s own chest. Specification 2: Did on or about 1 December 2011, offer violence against CPT M. S. M., the superior commissioned officer, who was then in the execution of office, by attempting to strike CPT M. with the applicant’s fist. Charge III: Violating Article 134, UCMJ: Specification 1: Did on or about 8 October 2011, wrongfully communicate to SGT G. H. a threat by telling SGT G. H, “If I ever see you Motherfucker, you’re dead,” or words to the effect, which conduct was prejudicial to good order and discipline and of a nature to bring discredit upon the armed forces. Specification 2: Did on or about 1 December 2011, wrongfully communicate to SFC R. D. a threat by telling SFC R. D., “Get the fuck away from me, or so help me God I’m going to punch you,” or words to the effect, which conduct was prejudicial to good order and discipline and of a nature to bring discredit upon the armed forces. Charge IV: Violating Article 89, UCMJ. Did on or about 1 December 2011, behave with disrespect towards CPT M. S. M, the superior commissioned officer, then known by the said applicant to be the superior commissioned officer, by saying “I fucking hate you,” “This is all your fucking fault,” and “You are a fucking queer,” or words to the effect. Charge V: Violating Article 92, UCMJ: Specification 1: On or about 8 October 2011, was disrespectful in language towards SSG G. S., a noncommissioned officer, then known by the said applicant to be a superior noncommissioned officer, who was then in the execution of office, by saying “If you hurt my foot, I will murder you,” and “I have a knife in my cast and I will shank your belly,” or words to the effect. Specification 2: On or about 8 October 2011, was disrespectful in language towards SFC R. D., a noncommissioned officer, who was then in the execution of office, by saying “Fuck you, get the fuck away from me” or words to the effect. Charge VI: Violating Article 86, UCMJ: Specification 1: Did on or about 11 October 2011, without authority, fail to go at the time prescribed to the appointed place of duty, to wit: 0630 hours formation at the Warrior Transition Battalion Barracks, building 9057. Specification 2: Did on or about 11 October 2011, without authority, fail to go at the time prescribed to the appointed place of duty, to wit: 1500 hours formation at the Warrior Transition Battalion Barracks, building 9057. Specification 3: Did on or about 13 October 2011, without authority, fail to go at the time prescribed to the appointed place of duty, to wit: 1500 hours formation at the Warrior Transition Battalion Barracks, building 9057. Specification 4: Did on or about 28 October 2011, without authority, fail to go at the time prescribed to the appointed place of duty, to wit: 1425 hours at the cast room. Specification 5: Did on or about 15 November 2011, without authority, fail to go at the time prescribed to the appointed place of duty, to wit: 1330 hours at the PT Clinic. Specification 6: On or about 21 November 2011, without authority, fail to go at the time prescribed to the appointed place of duty, to wit: 0915 hours at the PT Clinic. Specification 7: Did on or about 21 November 2011, without authority, fail to go at the time prescribed to the appointed place of duty, to wit: 1500 hours formation at the Warrior transition Battalion Barracks, building 9057. (2) Legal Consultation Date: 5 December 2011 (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: 19 January 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 September 2010 / 400 days (OAD) b. Age at Enlistment / Education / GT Score: 24 / some college / 130 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 6 years, 10 months, 19 days d. Prior Service / Characterizations: RA, 2 March 2005 – 29 June 2008 / HD CDT, 30 June 2008 – 4 June 2009 / HD USAR, 5 June 2009 – 24 June 2009 / NIF ARNG, 25 June 2009 – 20 January 2012 / UOTH (Concurrent Service) e. Overseas Service / Combat Service: Hawaii, SWA / Iraq (17 September 2010 – 21 April 2011) f. Awards and Decorations: AGCM, NDSM, GWOTSM, ASR, OSR, AFRM-M g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Orders 285-005, dated 12 October 2010, reflect the applicant was reduced from E-4 to E-3 effective 4 October 2010 for misconduct. Orders 362-014, dated 28 December 2010, reflect the applicant was reduced from E-3 to E-1 effective 22 December 2010 for misconduct. Orders 024-008, dated 24 January 2012, reflect the applicant was reduced from E-2 to E-1 effective 20 January 2012 for misconduct. Charge sheet as described in previous paragraph 3c(1). i. Lost Time / Mode of Return: 412 days (NIF, 2 December 2010 – 18 January 2012) / NIF j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of a VA rating decision, dated 18 December 2018, and supporting documents which reflect the applicant was rated 50 percent service connection for an acquired psychiatric disorder to include bipolar I disorder with other stressor-related disorder (claimed as anxiety and depression) effective 16 November 2018. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; VA Rating Decision; VA medical records; three DD Forms 214; DD form 215; two Enlisted Records Brief; employment contract; certificate of completion; transcript of academic record; Bachelor of Arts certificate; college transcripts; résumé. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has battled substance abuse and is now clean and sober. The applicant has worked hard to obtain a bachelor’s degree and is finishing a Master of Science in Public Policy and wishes to serve the public and bring credit upon the applicant, family and the country with honor. 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.) 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 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 good service, including a combat tour. The Board considered the service accomplishments and the quality of service. The applicant contends suffering from an undiagnosed service-connected mental health condition subsequent to several service-connected physical injuries. The applicant provided a copy of the VA rating decision which reflects the applicant was rated 50 percent service connection for an acquired psychiatric disorder to include bipolar I disorder with other stressor- related disorder (claimed as anxiety and depression) effective 16 November 2018, by the VA. The AMHRR does not contain a mental status evaluation (MSE). The applicant contends battling substance abuse and is now clean and sober. The applicant claims that applicant has worked hard to obtain a bachelor’s degree and is finishing a Master of Science in Public Policy and wishes to serve the public and bring credit upon the applicant, family and the country with honor. 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. 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, Bipolar Disorder, and Major Depression, which, in the opinion of the Board’s Medical Advisor, after applying liberal consideration, could potentially mitigate a discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found BH diagnoses of Adjustment Disorder and Bipolar Disorder which existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor, after applying liberal consideration, opined that applicant’s Bipolar Disorder partially mitigates applicant’s FTR’s and disrespect because these acts are part of the sequela of symptoms associated with applicant’s Bipolar Disorder. However, communicating specific and detailed threats including murder, and committing assault have no nexus with Bipolar Disorder, even in advanced stages of Bipolar Disorder, and therefore, these violent acts of misconduct are not mitigated by applicant’s Bipolar Disorder or OBH condition. (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 voted that the applicant’s Bipolar Disorder and OBH conditions did not outweigh the unmitigated basis for applicant’s separation - communicating specific and detailed threats including murder, and committing assault. b. Response to Contention(s): (1) The applicant contends good service, including a combat tour. The Board 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 communicating specific and detailed threats including murder, and committing assault, the applicant diminished the quality of service below that meriting a general discharge at the time of separation. (2) The applicant contends suffering from an undiagnosed service-connected mental health condition subsequent to several service-connected physical injuries. The Board liberally considered this contention, ultimately the Board determined applicant’s Bipolar Disorder and OBH conditions did not outweigh the unmitigated basis for applicant’s separation - communicating specific and detailed threats including murder, and committing assault. (3) The applicant contends battling substance abuse and is now clean and sober. The applicant has worked hard to obtain a bachelor’s degree and is finishing a Master of Science in Public Policy and wishes to serve the public and bring credit upon the applicant, family and the country with honor. 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. In this case, the Board determined that this contention does not warrant any change to the applicant’s discharge. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant’s BH conditions did not outweigh the unmitigated offenses of communicating specific and detailed threats including murder, and committing assault, and the discharge characterization 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 AR20210003121 1