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, applicant's other than honorable discharge was improper because the military made an error in discretion of applicant's mental health condition. The discharge was inequitable because there is substantial doubt applicant would have received the same discharge under the new policies. According to the 2014 Hagel Memo (Supplemental Guidance to Military BCMRs/BCNRs by Veterans Claiming PTSD), 2017 Kurta Memo, and the 2016 Carson Memo (Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military BCMRs/ BCNRs by Veterans Claiming PTSD or TBI), applicant requests the Board give applicant's mental condition during applicant's time in service liberal consideration. The applicant states applicant's commanding officer described applicant's behavior inaccurately and applicant would have received a different discharge status if these errors of discretion had not been made. Applicant's discharge should be upgrades and applicant requests a change to the narrative reason for separation from in lieu of trial by court-martial, under AR 635-200 chapter 10 to separation due to personality disorder under chapter 5-13, AR 635-200. The applicant was diagnosed by a VA psychiatrist with Major Depressive Disorder with Anxious distress connected in an in-service motor vehicle accident. Prior to military vehicle accident, applicant never had thoughts of suicide. The applicant was diagnosed with Sleep Apnea because applicant was not sleeping properly. The applicant was in pain from the accident and not getting the proper attention after several visits to the on post clinic. The applicant was on a downward spiral of depression, and was not sleeping or eating, and did not feel like them-self anymore. The applicant states, applicant started self-medicating to deal with applicant's depression and reached out for help and was enrolled in Fort Hood AMIOP where applicant was diagnosed with Cocaine, Marijuana, Alcohol disorder, and Insomnia by Dr. S. The applicant's commanding officer was more concerned with punishing the applicant, rather than helping applicant get treatment. The applicant states, had the symptoms been taken more seriously, applicant would have been able to have made better judgement and avoided extenuating circumstances leading to applicant's discharge. The applicant believes applicant's mental health condition should mitigate applicant's discharge because the evidence shows applicant was unable to make sound judgement due to applicant's mental health condition. In a records review conducted on 31 January 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: 19 July 2016 c. Separation Facts: (1) Date Charges Preferred (DD Form 458, Charge Sheet): NIF (2) Legal Consultation Date: NIF (3) Basis for Separation: NIF (4) Recommended Characterization: NIF (5) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 January 2014 / 3 years, 25 weeks b. Age at Enlistment / Education / GT Score: 25 / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-4 / 91B10, Wheeled Vehicle Mechanic / 2 years, 6 months, 6 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Orders 189-0150, dated 7 July 2016, reflects the applicant was reassigned to the transition point for transition processing. After processing the applicant was discharged with an effective date: 19 July 2016. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of a VA disability rating decision, dated 7 June 2018, reflecting the applicant was granted a service- connection for treatment purposes only for major depressive disorder with anxious distress. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; two VA Rating Decision letters; self-authored statement; four third-party letters; Supplemental Guidance to Military Boards (Hagel memo); Clarifying Guidance to Military Discharge Review Boards (Kurta memo); Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance (Carson memo); four 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaivable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years' active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant's AMHRR is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. The applicant's AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 10, by reason of In Lieu of Trial by Court-Martial, with a characterization of service of under other than honorable conditions. 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 regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends applicant should receive liberal consideration because applicant was diagnosed with major depressive disorder with anxious distress by the VA; and, it was this previously undiagnosed disorder which affected applicant's behavior and led to applicant's discharge. The applicant provided a VA Rating Decision letter indicating he was diagnosed with a major depressive disorder with anxious distress for treatment purposes. The AMHRR is void of a mental status evaluation (MSE). The applicant contends applicant's discharge was improper because the military made an error in the discretion of applicant's mental health and had applicant's command taken applicant's mental health seriously applicant would have had better judgement. The applicant contends applicant's command was more interested in punishing the applicant than treating applicant's mental health. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The third party statements provided with the application speak highly of the applicant. They all recognize the applicant's good performance while in 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 DoD and VA medical records and found the applicant was diagnosed with a Major Depressive Disorder that could mitigate many types of basis for separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant's Major Depressive Disorder is service connected by the VA. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor determined that in accordance with liberal consideration guidance, applicant's Major Depressive Disorder does not mitigate using cocaine, the accepted basis for applicant's separation. The evidence does not support a conclusion that Major Depressive Disorder with Anxious Distress played a contributory role in applicant's positive UA for cocaine, and therefore does not mitigate the basis for 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 evidence did not support a conclusion that any of the applicant's medical conditions outweighed applicant's positive UA for cocaine that was the accepted basis for applicant's separation. b. Response to Contention(s): (1) The applicant contends the narrative reason should be changed. The Board considered this contention and determined the narrative reason is proper and equitable due to applicant's Major Depressive Disorder did not mitigate using cocaine. (2) The applicant contends applicant should receive liberal consideration because applicant was diagnosed with Major Depressive Disorder with anxious distress by the VA; and, it was this previously undiagnosed disorder which affected applicant's behavior and led to applicant's discharge. The Board liberally considered this contention but found applicant was diagnosed with Major Depressive Disorder and determined the applicant's condition did not outweigh the discharge. (3) The applicant contends applicant's discharge was improper because the military made an error in the discretion of applicant's mental health and had applicant's command taken applicant's mental health seriously applicant would have had better judgement. The applicant's command was more interested in punishing the applicant than treating applicant's mental health. The Board considered this contention during its deliberation but concluded nothing in applicant's record supports a conclusion that any of applicant's command actions were arbitrary or capricious. 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 Major Depressive Disorder did not mitigate the misconduct of using cocaine, 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, and the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210003186 1