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 and a narrative reason change. The applicant seeks relief contending, in effect, the applicant has been unfairly and unjustly discharged and received an unfair characterization of service. The applicant states, after the military, the applicant felt out of place, lost and disheartened. The Army forced the applicant out during the Operation Iraqi Freedom war. The applicant was lost, out of place, and depressed from the time spent in a war zone. The applicant had five suicide attempts after being unfairly discharged. During the time of war, no one took the time to acknowledge the applicant as a young 19-year-old Soldier who needed help. The applicant went to behavioral health after suffering through depression before the applicant went to war. The applicant served 10 months in Iraq before the chain of command discharged the applicant from the Army. The chain of command was in acting leadership positions during the applicant’s time serving in Operation Iraqi Freedom. According to the applicant’s DD Form 214, it states “in Lieu of court martial” however, the applicant never went to court for anything. A lawyer was hired through the Army and everything was taken care of, therefore the applicant did not have to go to court. The Army justified the discharge by stating “in Lieu of court martial” when there is no supporting evidence the applicant went to court. Due to the circumstances, the chain of command did not justify the discharge and they knew the applicant was suffering from mental conditions. The Army failed to justify the applicant’s discharge, which in turn did not allow the applicant to seek help immediately after discharge from the Army. The applicant moved back to Richmond, Virginia completely lost and had no idea the other than honorable discharge would hinder seeking mental help after becoming a combat veteran. The applicant states needing to reach out through the Veteran Affairs and seek the proper help needed. In a records review conducted on 3 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: 6 December 2005 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On19 August 2005, the applicant was charged with: Charge I: Violating Article 89, UCMJ: for on or about 27 July 2005, behave with disrespect toward CPT N., a superior commissioned officer, then known by the accused to be a superior commissioned officer, by rolling eyes at the officer. Charge II: Violating Article 91, UCMJ: Specification 1: The applicant, having received a lawful order from SSG C., a noncommissioned officer, then known by the accused to be a noncommissioned officer, to get up on the 50 CAL, an order which it was the applicant’s duty to obey, did, at or near FOB Rustamiyah, Baghdad, Iraq on or about 6 July 2005, willfully disobey the same. Specification 2: The applicant, on or about 17 July 2005, was disrespectful in language toward SGT C., a noncommissioned officer, then known by the accused to be a noncommissioned officer, who was then in the execution of office, by saying “I’m not going to do shit now,” or words to that effect. Specification 3: The applicant, having received a lawful order from SGT C., a noncommissioned officer, then known by the accused to be a noncommissioned officer, to go to the position of at ease, an order which it was the applicant’s duty to obey, did, at or near FOB Rustamiyah, Baghdad, Iraq on or about 17 July 2005, willfully disobey the same. Specification 4: The applicant on or about 17 July.2005, was disrespectful in language toward SGT C., a noncommissioned officer, then known by the accused to be a noncommissioned officer, who was then in the execution of office, by saying “do not do shit to me anymore," or words to that effect. Charge III: Violation of Article 134, UCMJ: The applicant did at or near FOB Rustamiyah, Baghdad, Iraq, on or about 18 August 2005, wrongfully communicate to CPT L., a threat to kill 1SG S., SFC S., and SGT C. by shooting them. (2) Legal Consultation Date: 13 October 2005 (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: 20 October 2005 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 January 2003 / 4 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92G10, Food Service Operation / 2 years, 10 months, 15 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq-Kuwait (22 January 2005 – 18 November 2005) f. Awards and Decorations: NDSM, ASR, GWOTSM, ICM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. Four Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Mental Status Evaluation, dated 12 August 2008, reflects the applicant is within normal limits and speech is normal. Displays no sign of psychotic behavior, including delusions or hallucinations. Displays no impairment in memory or cognitive functions. The applicant’s behavior is described as calm and cooperative. The applicant was diagnosed with: Adjustment Disorder with depressed mood and Acetaminophen toxicity (resolved). The applicant was cleared for any administrative actions deemed appropriate by the command. Sanity Board Findings, dated 18 August 2005, reflects the applicant was and is mentally sound to appreciate any wrongfulness of conduct and to conform conduct to the requirements of the law. The applicant has the mental capacity to understand and participate in any administrative proceedings. The applicant was diagnosed with: Axis I: Adjustment Disorder with Disturbance of Conduct; THC Abuse; Alcohol Abuse. Axis II: Antisocial Personality Disorder with Borderline personality traits. Axis IV: Occupational, financial, interpersonal. and family stressor. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; Two third party letters. 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: 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’ 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 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 being lost, out of place, and depressed from the time spent in a war zone. The applicant’s AMHRR contains a mental status evaluation, dated 12 August 2008, reflecting the applicant is within normal limits and speech is normal; displays no sign of psychotic behavior, including delusions or hallucinations; displays no impairment in memory or cognitive functions; and the applicant’s behavior is described as calm and cooperative. The applicant was diagnosed with: Adjustment Disorder with depressed mood and Acetaminophen toxicity (resolved). The applicant was cleared for any administrative actions deemed appropriate by the command. The AMHRR also shows a Sanity Board Evaluation, dated 18 August 2005, which reflects the applicant was and is mentally sound to appreciate any wrongfulness of conduct and to conform conduct to the requirements of the law. The applicant was diagnosed with: Adjustment Disorder with Disturbance of Conduct; THC Abuse; Alcohol Abuse; Antisocial Personality Disorder with Borderline personality traits, Occupational, financial, interpersonal and family stressor. The applicant had the mental capacity to understand and participate in any administrative proceedings. The MSE was considered by the separation authority. The applicant contends an upgrade would provide access to medical benefits through the VA. Eligibility for veteran’s benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill 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. The third party statements provided with the application, speak about the drastic change in behavior the applicant showed once discharged from the Army. 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 a BH diagnosis of Adjustment Disorder with depressed mood and Antisocial Personality Disorder with Borderline personality traits – which are potentially mitigating for applicant’s misconduct. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found an in-service BH diagnosis of Adjustment Disorder with depressed mood and Antisocial Personality Disorder with Borderline personality traits. (3) Does the condition or experience actually excuse or mitigate the discharge? No. It is the opinion of the Board’s Medical Advisor, after applying liberal consideration, that although the applicant has a BH diagnosis of Adjustment Disorder with depressed mood and Antisocial Personality Disorder with Borderline personality traits, these BH conditions do not mitigate the misconduct of disrespecting an NCO, willfully disobeying orders, and wrongfully communicating a threat to kill by shooting that were the basis for applicant’s separation because this misconduct is not part of the sequela of symptoms associated with applicant’s BH conditions. (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 medical conditions outweighed the basis for applicant’s separation. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed due to never going to court in lieu of trial by court martial. The Board considered this contention but found the applicant requested, in writing, as authenticated by the discharging DD Form 214 with the applicant’s signature, that applicant accepted the Chapter 10, In Lieu of Trial by Court Martial discharge to avoid the court martial, and therefore the applicant’s discharge narrative reason was both proper and equitable. (2) The applicant contends being lost, out of place, and depressed from the time spent in a war zone. 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 there was no nexus between the applicant’s conditions or experiences and the bases for separation, and, due to the serious nature of the offenses, a discharge upgrade is not warranted. (3) The applicant contends an upgrade would allow medical assistance through the VA. 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. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 with depressed mood and Antisocial Personality Disorder with Borderline personality traits diagnoses did not mitigate the offenses of disrespecting an NCO, willfully disobeying orders, and wrongfully communicating a threat to kill by shooting, 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 AR20210003153 1