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, he developed PTSD during his second deployment to Iraq. The applicant states, while he was on a convoy he was hit by an RPG and many of his fellow troops were killed. The applicant along with others in his truck had to pull their friends bodies out of crushed vehicles. While stationed in Kuwait on his third deployment, he injured his left knee during physical training. The applicant was flown to Fort Bragg for surgery, where his superiors were not pleased he could not report back to duty and continue on to Iraq. The applicant states, psychologically at this point in his life, he was not in good shape. He was under great amounts of stress coming back from Kuwait, injured, feeling depressed and having PTSD. The applicant was charged with bigamy and discharged from the Army. The applicant states he married Ms. S. literally 24 hours prior to his previous divorce being final. The applicant was unaware at the time his previous marriage was still valid. The applicant states because of his PTSD, he made an error in the dates of his marriage. The applicant’s ex-wife caused this to be brought to the attention of the applicant’s superiors and the results for him have been devastating. The applicant was a career Army Soldier and his DD Form 214, reflects 12 years, 10 months and 3 days without one infraction. His awards and medals are listed on this form and he believes one angry female destroyed what he gave his life for. In a records review conducted on 18 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: 4 November 2009 c. Separation Facts: (1) Date Charges Preferred (DD Form 458, Charge Sheet): On 1 September 2009, the applicant was charged with: Charge I: Violating Article 90, UCMJ, for having received a lawful command from Captain C. B., his superior commissioned officer, then known by the applicant to be his superior commissioned officer, to not have contact with S. A., or words to that effect, did, on or about 25 July 2009 willfully disobey the same. Charge 2: Violating Article 134, UCMJ, did, on or about 20 March 2009, wrongfully and bigamously marry S. A., having at the time of his said marriage to S. A. a lawful wife then living, to wit: L. G-A. (2) Legal Consultation Date: 7 October 2009 (3) Basis for Separation: Pursuant to the applicant’s request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 14 October 2009 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 November 2005 / 6 years b. Age at Enlistment / Education / GT Score: 28 / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-5 / 44B2P, Metal Worker / 12 years, 10 months, 3 days d. Prior Service / Characterizations: RA, 2 January 1997 – 9 March 2000 / HD RA, 10 March 2000 – 13 June 2002 / HD RA, 14 June 2002 – 12 June 2003 / HD RA, 13 June 2003 – 9 November 2005 / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (17 January 2005 – 17 January 2006) f. Awards and Decorations: ARCOM-2, AAM-6, AGCM, GWOTSM, ICM-CS, ASR, OSR g. Performance Ratings: March 2005 – February 2006 / Among The Best 1 March 2006 – 28 February 2007 / Fully Capable 1 March 2007 – 29 February 2008 / Fully Capable 1 March 2008 – 28 February 2009 / Among The Best h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. Wichita County, Rites of Matrimony, shows the applicant married Ms. L. G-A. on 24 June 2008. State of North Carolina, Application, License and Certificate of Marriage, shows the applicant married Ms. S. A. on 20 March 2009. State of Oklahoma, Summons and Notice of Automatic Temporary Injunction, shows the applicant filed for divorce from Ms. L. G-A. on 9 April 2009. State of Oklahoma, Decree of Divorce and Dissolution of Marriage, shows the applicant was divorced from Ms. L. G-A on 16 June 2009. Three Developmental Counseling Forms, for various acts of misconduct. 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 12 January 2018, reflecting the applicant was service connected for treatment purposes only for post-traumatic stress disorder (claimed as acquired mental disability to include PTSD, depression and anxiety. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; DD Form 214; VA Rating Decision; VA Form 21-0960P-3; VA Form 21-4138. 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. (8) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army’s best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. 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 record 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 he was suffering from PTSD, which affected his behavior and led to his discharge. The applicant’s AMHRR contains no documentation of PTSD diagnosis. The AMHRR was void of a mental status evaluation. The applicant submitted a copy of his VA Rating Decision, which reflects he was service-connected for PTSD, for treatment purposes. The applicant contends he confused the dates because of PTSD and married his second wife 24 hours before his divorce was final. He believes one angry female destroyed what he gave his life for. The evidence of the AMHRR shows the applicant married his second wife on 20 March 2009 and was not divorced from his former wife until 16 June 2009. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends he had a knee injury which contributed to his behavior. Army Regulation 635-200, in pertinent part, stipulates commanders will not separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service. 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? No. 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 the applicant was diagnosed with PTSD, however, even after applying liberal consideration, found the sequela of PTSD could not mitigate applicant’s bigamy or failure to obey an order that were the basis for applicant’s separation. (2) Did the condition exist or experience occur during military service? N/A. (3) Does the condition or experience actually excuse or mitigate the discharge? N/A. (4) Does the condition or experience outweigh the discharge? N/A. b. Response to Contention(s): (1) The applicant contends he was suffering from PTSD, which affected his behavior and led to his discharge. The Board liberally considered this contention and reviewed the applicant's DOD and VA health record, applicant's statement, and/or civilian provider documentation, and determined PTSD does not mitigate applicant’s bigamy or failure to obey an order that were the basis for applicant’s separation. (2) The applicant contends confusion of the dates because of PTSD and marrying the second wife 24 hours before divorce was final. The Board considered this contention but determined that the weight of the evidence supported the conclusion that applicant’s bigamy was a valid basis for separation. (3) The applicant contends he had a knee injury which contributed to his behavior. The Board considered this contention but determined that applicant’s knee injury did not mitigate any basis for applicant’s separation. (4) The applicant contends good service, including a combat tour. The Board determined the applicant’s discharge was proper and equitable 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 engaging in Bigamy and disobeying a lawful no contact command order, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. c. The Board determined 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 PTSD did not mitigate the offenses of bigamy and disobeying a no contact command order that were appropriate basis for applicant’s separation. 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 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 AR20210003219 1