1. Applicant’s Name: a. Application Date: 16 September 2020 b. Date Received: 18 September 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to general, under honorable conditions or honorable. b. The applicant states, in effect, an upgrade for the betterment of them and their family; they want to prevent this from becoming a future issue, they were to be married in the future applicant is newly employed with an electrical contracting company which mainly services government facilities, however, they are having complications with continued employment due to their discharge but have submitted letters of reference/character in hopes of keeping employment. In order for them to continue employment with this company, they are requesting a change in their discharge. c. The applicant contends the nature of their discharge does not reflect who they were as a Soldier and who they are as a person. The last 8 years following their discharge, they have had no incidents to reflect them in a bad light. d. Board Type and Decision: In a records review conducted on 17 November 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 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: 16 November 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: Pursuant to the applicant’s request for voluntary discharge under provision of AR 635-200, Chapter 10, In Lieu of Trial by Court-Martial. (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 July 2009 / 4 years b. Age at Enlistment / Education / GT Score: 17 / High School Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: NIF / 15W10 Unman Aerial Vehicle Operator / 3 years, 3 months, 25 days d. Prior Service / Characterizations: RA, 22 July 2009 – 13 March 2012, Honorable e. Overseas Service / Combat Service: SWA / Iraq (30 June 2010 – 11 July 2011) f. Awards and Decorations: * Iraq Campaign Medal w/ 2 Campaign Stars * Army Commendation Medal * Army Achievement Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Army Service Ribbon * Overseas Service Ribbon – 2 * Combat Action Badge * Basic Aviation Badge g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) On 10 October 2008, the applicant enlisted in the United States Army Reserve’s Delayed Entry Program; on 22 July 2009, the applicant enlisted in the Regular Army for 4 years as an E-1; on 14 March 2012, they completed their first reenlistment for 4 years as an specialist (SPC/E-4). (2) On 14 March 2011, the applicant was awarded their Combat Action Badge (CAB) for engaging enemy fire on 23 February 2011. (3) The AMHRR is void of the entire separation proceedings, however, on 5 November 2012, the applicant was issued orders with an effective date of 16 November 2012. (4) A DD Form 214 (Certificate of Release of Discharge from Active Duty) provides: * Authority: Army Regulation 635-200, Chapter 10 * Narrative Reason: In Lieu of Trial by Court-Martial * SPD Code: KFS * Reentry Code: RE-4 * Service Characterization: Under Other Than Honorable Conditions * Total NET Active Service this Period: 3 years, 3 months, 25 days * Remarks: Continuous Honorable Active Service: 22 July 2009 – 13 March 2012; The applicant has not completed their first full term of service. * Lost Time: None * Signature: electronically signed (e-signed) i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), Third Party Statements : that speak highly of the applicant. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has had no incidents in the 8 years after their discharge. They are married and a new employee at an electrical contracting company. 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), dated 25 September 2019, 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) 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. (2) 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. (3) An 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. (4) Chapter 10, Discharge in Lieu of Trial by Court Martial is applicable to members who committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general was authorized, an under other than honorable conditions discharge was considered appropriate, unless the record was so meritorious it would warrant an honorable. After receiving legal counseling, the soldier may elect to submit a request for discharge in lieu of trial by court-martial. The soldier will sign a written request, certifying that they have been counseled, understands their rights, and may receive a discharge under other than honorable conditions. The following will accompany the request for discharge: * A copy of the court-martial Charge Sheet (DD Form 458) * Report of medical examination and mental status evaluation, if conducted * A complete copy of all reports of investigation * Any statement, documents, or other matter considered by the commanding officer in making their recommendation, including any information presented for consideration by the soldier or consulting counsel * A statement of any reasonable ground for belief that the soldier is, or was at the time of misconduct, mentally defective, deranged, or abnormal. When appropriate, evaluation by a psychiatrist will be included. (5) 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: (1) RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. (2) RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. (3) 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. a. The applicant requests an upgrade to honorable. A review of the record provides administrative irregularity in the proper retention of records, specifically the AMHRR is void of the entire separation proceedings and whether the applicant requested a mental health and/or mental examination. Based on this, we are unable to provide specific facts and circumstances surrounding them voluntarily requesting to be discharged In Lieu of Trial by Court-Martial. b. The available evidence provides the applicant enlisted with parental consent at the age of 17. The applicant served in Iraq in support of Operation New Dawn and awarded Army Commendation Medal, Army Achievement Medal as well as the Iraq Campaign Medal with 2 Campaign Stars, where they engaged enemy fire and received their CAB, and promotion to E-4. Notwithstanding the lack of evidence, a DD Form 214, with the applicant’s e-signature shows they were separated under the provisions of Army Regulation 635-200, Chapter 10 with a characterization of service of Under Other than Honorable Conditions. The applicant completed 3 years, 3 months and 25 days of their enlistment contractual obligation with 1 year and 12 days served in support of the Global War on Terrorism. c. Army Regulation 635-200 states Chapter 10 is a voluntary discharge request in-lieu of trial by court-martial. 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. For 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. d. Published Department of Defense guidance indicates that the guidance is not intended to interfere or impede on the Board’s statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant’s petition, available records and/or submitted documents in support of the petition. 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 reviewed DoD and VA medical records and found no mitigating BH diagnoses on the applicant. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused, or mitigated a discharge. (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 seeks relief contending, in effect, an upgrade is for the betterment of them and their family; they want to prevent this from becoming an issue between their spouse in the future. The applicant is newly employed with an electrical contractor which mainly services government facilities in which they have denied access due to their discharge characterization. In order for them to continue employment with this company, they are requesting a change in their discharge. The Board considered this contention but does not grant relief to gain employment or enhance employment opportunities. (2) The applicant contends the nature of their discharge does not reflect who they were as a Soldier and who they are as a person. The last 8 years following their discharge, they have had no incidents to reflect them in a bad light. The Board considered this contention and determined that the applicant’s post-service accomplishments does not outweigh the applicant’s reason for separation. Without knowing the facts and circumstances relating to the applicant’s discharge, the Board determined that the reason for the applicant's separation and the character of service the applicant received upon separation were proper and equitable. c. The Board determined that the discharge is, at this time, proper and equitable, considering 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 for the following reasons: the Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, record of service, the frequency and nature of misconduct, and the reason for separation. The Board was unable determine if there was evidence of in-service or BH conditions mitigating factors because the applicant’s official records do not contain the facts and circumstances surrounding the applicant’s discharge and the applicant did not provide any evidence of the basis of the applicant’s separation. Without knowing the facts and circumstances relating to the applicant’s discharge, the Board determined that the reason for the applicant's separation and the character of service he received upon separation were proper and equitable. (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 AR20210005363 1