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 always wanted to serve his country like his father and most of his family members. The applicant initially joined the Army Reserves and then the Regular Army. The applicant earned the reputation of taking care of Soldiers and based on his reputation, his commander, at the time, moved the applicant into another office to assist with administrative work. When he was in the Army he accidently dropped his daughter and the applicant was not only proved innocent but the daughter lived with the applicant since the incident. When the incident occurred Texas Child Protective Services were involved and did their due diligence and made sure there was no harm committed against the daughter. As the investigation wrapped up, CPS said the applicant was innocent but new commander decided to pursue court- martial. Although the applicant believed he would have won, he was exhausted and demoralized and decided to separate and go home with his family. The new chain of command treated the applicant with prejudice and disgust and would not let the applicant transfer to another unit. The prejudice and harassment became so bad to the point of involving the congressmen from the resident state and the State of Texas. The applicant just wanted to move on with his life and did not care about his injuries or his PTSD. The applicant was broken to the point suicide had crossed his mind and he spent weeks in the University Behavioral Hospital in El Paso. The applicant filed an Equal Opportunity complaint against a Master Sergeant for refusing the applicant the right to attend church and an IG complaint against his two-star General to separate the applicant because of mental state but the general officer would not allow it. The General was later forced to retire due to unethical acts. The applicant volunteers at the church; convinced his brother to join the military; writes music and performs with various artists; attends schools’ FCA programs and teaches children finance techniques; and is a logistics supervisor at his place of employment. The applicant’s family is unable to bare the financial burden to treat his medical issues and an upgrade would help with his medical treatment for his injuries, sleep apnea, and PTSD. In a records review conducted on 25 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 August 2011 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: 15 October 2009 / 3 years, 15 weeks b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 92F10, H7 Petroleum Supply Specialist / 3 years, 9 months, 13 days d. Prior Service / Characterizations: USAR, 7 November 2007 – 14 October 2009 / HD IADT, 4 January 2008 – 14 June 2008 / UNC (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The applicant provided: Texas Department of Family and Protective Services letter, dated 29 September 2010, reflecting the Department of Family and Protective Services (DFPS) completed its investigation of alleged abuse or neglect reported on 27 July 2010 involving one or more children in the applicant’s family and ruled out medical neglect but was unable to determine physical abuse, meaning there was insufficient information to conclude whether the alleged abuse or neglect did or did not occur. Memorandum for Record, subject: Appealing to Field Grade Article 15, dated 5 December 2010, reflecting he was appealing the punishment of loss of rank and extra duty and restriction for 45 days, stating he did not commit the offense he was charged with and his family was under financial stress from their situation with Child Protective Services. The 47th Brigade Support Battalion Equal Opportunity Leader, Memorandum for Record, dated 20 January 2011, reflecting the applicant filed an EO complaint against MSG M.C. for religious discrimination. The EO representatives met and determined no form of religious discrimination had taken place on MSG M.C.’s behalf. MSG M.C. language and attitude was unprofessional and he could have handled the issue differently but the applicant was not being religiously discriminated against. Memorandum, subject: Commander Notification of Family Advocacy Program (FAP) Case Review Committee (CRC) Incident Determination and Treatment Plan for [Applicant], dated 26 April 2011, reflecting the applicant was alleged to have physically abused a child. The CRC determined the risk level was low and directed the commander to command-direct the applicant to contact the assigned worker to schedule treatment. DD Form 214 (Certificate of Release or Discharge from Active Duty), 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. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided: Military Protective Order, dated 29 November 2010, reflecting the applicant was issued a protective order and the protected person was the applicant’s spouse. The applicant was released from University Behavioral Hospital after being admitted for suicidal ideations. The medical facility, Army Community Services, Family Advocacy Program, and chain of command agreed the applicant would be restricted to the company area in the best interest of the family. Physical Profile, dated 22 December 2010, reflecting the applicant had the following medical condition: Insomnia. William Beaumont Army Medical Center, El Paso, TX, Memorandum for Record, subject: Patient’s diagnosis, dated 4 August 2011, reflecting the applicant was receiving psychiatric and mental health services at the Community Behavioral Health Services at Biggs for APA DSM IV diagnostic criteria of PTSD and sleep disturbances, severe and was prescribed medication. 5. APPLICANT-PROVIDED EVIDENCE: Two DD Forms 293; two self-authored statements; 20 third party statements; Army Times Article “2-star general to retire after reprimand in Bliss deal”; Custody Agreement; Superior of Fulton County Family Law Division Parenting Plan; Memorandum for Record; and Documents to Congressman: Letter to Congressman J.L., sworn statements/corroborating witnesses, ARs/corroborating witnesses, doctor’s remarks/prescriptions, character statements, awards and decorations, and training certificates. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states he volunteers at church; convinced his brother to join the military; writes music and performs with various artists; attends schools’ FCA programs and teaches children finance techniques; and is a logistics supervisor at his place of employment. 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) 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 a person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years 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 record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. The applicant provided a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 applicant contends suffering from PTSD and sleep apnea while in service. The applicant submitted medical documentation reflecting diagnoses of PTSD and sleep disturbances, severe and prescribed medication while on active duty. The AMHRR is void of a mental status evaluation. The applicant contends harassment and discrimination by members of the chain of command. The applicant’s provided documents reflecting a filed EO complaint against MSG M.C. for religious descrimination but the EO representatives found MSG M.C., although unprofessional, did not discriminate against the applicant. Addtionally, the applicant provided documents to show a written letter to the congressman with complaints of harassment and prejudiceby the command and various letters from Soldiers within the organization to support the contentions. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends discharge should have been for medical reasons. 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. The applicant contends post service accomplishments include volunteering at the church and throughout the community and serves as a logistics supervisor at work. The third party statements provided with the application speak highly of the applicant. They all recognize the applicant’s good conduct after leaving the Army. 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. The applicant contends an upgrade would allow receipt of medical benefits. Eligibility for veteran's benefits 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. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that AHLTA contains evidence of applicant’s Adjustment Disorder and Insomnia, and further that applicant has been diagnosed with PTSD. (2) Did the condition exist or experience occur during military service? Yes. The Board’s Medical Advisor found AHLTA contains an in-service BH diagnoses of Adjustment Disorder and Insomnia, and evidence that supports applicant had PTSD in-service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board’s Medical Advisor could not opine, even with liberal consideration of all the evidence, that applicant’s service related PTSD, or other medical condition actually mitigates applicant’s basis for separation without knowing the actual basis of separation. However, the Board’s Medical Advisor did opine that PTSD does not mitigate child abuse since child abuse is not part of the sequela of symptoms associated with PTSD, but without any further evidence, could not opine on applicant’s specific case. (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 the basis for applicant’s separation. b. Response to Contention(s): (1) The applicant contends suffering from PTSD and sleep apnea while in service. While the applicant’s PTSD and sleep apnea were considered by the Board, the Board could not determine whether or not any in-service medical condition outweighed a particular basis for separation without knowing the basis for separation. (2) The applicant contends harassment and discrimination by members of the chain of command. The Board determined the evidence did not overcome the presumption of government regularity by applicant’s chain of command throughout the applicant’s separation process. (3) The applicant contends the discharge should have been for medical reasons. While the Board considered this contention, without knowing the basis for separation in this “in lieu of trial by court-martial” separation action, the Board was unable to conclude the discharge was inappropriate. (4) The applicant contends good service. While the Board considered this contention, without knowing the basis for separation, the Board was unable to conclude the discharge was inappropriate. (5) The applicant contends an upgrade would allow receipt of medical benefits. 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 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 there is insufficient evidence to determine the applicant’s basis of separation, and whether in turn, any BH condition, or other factor would mitigate that basis for separation. Further, the Board determined that 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 AR20210003242 1