1. Applicant’s Name: a. Application Date: 26 June 2020 b. Date Received: 2 July 2020 c. Counsel: Yes 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, through counsel, an upgrade to honorable along with a reentry (RE) code, separation program designator (SPD) code and a narrative reason change. The applicant’s counsel seeks relief contending, in effect, the applicant had honorable service, including three deployments. At the time the applicant committed the misconduct, the applicant had been struggling with depression, anxiety, and insomnia, likely due to a broken marriage and multiple back-to-back deployments. The applicant was diagnosed with adjustment disorder with depressed mood. The applicant was showing clear signs of post-traumatic stress disorder (PTSD), which was misdiagnosed as adjustment disorder. The applicant’s chain of command made a material error of discretion because the characterization of service is too harsh when the totality of the circumstances is evaluated. The discharge stigmatizes the applicant’s reputation, impedes ability to gain employment, and is evidence against the applicant’s character. The applicant’s counsel contends the applicant made a mistake in judgement and integrity by making a false statement for which the applicant had taken responsibility. The applicant’s counsel contends based on propriety and equity; the applicant deserves to have the discharge upgraded. (The complete brief and exhibits are available for the board’s review). b. Board Type and Decision: In a records review conducted on 05 July 2023, and by a 4-1 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: 31 July 2017 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 12 May 2017, the applicant was charged with: Charge I: Violating Article 121, UCMJ, The Specification: Between 4 October 2012 and 12 October 2016, steal U.S. Currency, military property, of a value of more than $500, the property of the U.S. Government. Charge II: Violating Article 107, UCMJ: Specification 1: On 4 October 2012, with intent to deceive, sign an official document, to wit: DA Form 5960, which document was false in that it listed the applicant’s dependent child as living in Brooklyn, NY. Specification 2: On 9 October 2012, with intent to deceive, sign an official document, to wit: DD Form 1561, which document was false in that it listed the applicant’s dependent child as living in Brooklyn, NY, and the dependent child was not in the legal custody of another person when the applicant received military orders. Specification 3: On 12 October 2012, with intent to deceive, sign an official document, to wit: DD Form 1351-2, which document was false in that it listed the applicant’s dependent child as living in Brooklyn, NY. Specification 4: On 12 October 2016, with intent to deceive, sign an official document, to wit: DD Form 1351-2, which document was false in that the applicant was not accompanied by the applicant’s dependent child from Brooklyn, NY. Specification 5: On 12 October 2016, with intent to deceive, sign an official document, to wit: DA Form 5960, which document was false in that it listed the applicant’s dependent child did not reside with the applicant. (2) Legal Consultation Date: 28 June 2017 (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: NIF (5) Separation Decision Date / Characterization: 21 June 2017 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 25 October 2013 / Indefinite b. Age at Enlistment / Education / GT Score: 31 / Bachelor’s Degree / 110 c. Highest Grade Achieved / MOS / Total Service: E-6 / 63W30, Health Care Specialist / 14 years, 9 months, 8 days d. Prior Service / Characterizations: RA, 23 October 2002 – 24 October 2013 / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (20 August 2003 – 23 March 2004; 1 September 2006 – 23 March 2007; 17 May 2008 – 4 July 2009) f. Awards and Decorations: ARCOM-7, JSAM, AAM-11, MUC, AGCM-4, NDSM, GWOTEM, GWOTSM, KDSM, HSM, ICM-3CS, NCOPDR-2, ASR, OSR-4, MOVSM g. Performance Ratings: 2 June 2013 – 1 June 2014 / Among the Best 1 June 2014 – 2 May 2015 / Among the Best 2 May 2015 – 30 April 2016 / Most Qualified 1 May 2016 – 30 August 2016 / Highly Qualified h. Disciplinary Action(s) / Evidentiary Record: See Charge Sheet as described in item 3c (1). Criminal Investigation Command (CID) Law Enforcement Report – Final, dated 24 March 2017, reflects an investigation established probable cause to believe the applicant committed the offense of BAH Fraud, Larceny, and False Official Statement when between October 2012 and October 2016, the applicant claimed the dependent child, Ms. R.H., resided in Brooklyn, NY, when the dependent child was enrolled in the Tricare South Region during the timeframe with a Texas address. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: The applicant provides post-service Department of Veteran Affairs (VA) medical documents reflecting a positive screen for depression and PTSD. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Legal Brief with exhibits (110 total pages) 6. POST SERVICE ACCOMPLISHMENTS: The applicant’s counsel provides evidence reflecting the applicant obtained a Master of Science Degree. 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) 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 are 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-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. 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. 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, through counsel, an upgrade to honorable along with a RE code, SPD code and a narrative reason change. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant’s counsel requests the applicant’s narrative reason for the discharge be changed. The applicant was separated under the provisions of Chapter 10, 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 935-5, Separation 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 or authority to be entered under this regulation. The applicant’s counsel requests the applicant’s SPD and RE codes be changed. Separation codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations the SPD code specified by Army Regulations for a discharge under Chapter 10, is “KFS.” Army Regulation 635-5, Separation Documents, governs the preparation of the DD Form 214 and dictates the entry of the 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 SPD code to be entered under this regulation. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of “KFS” will be assigned an RE Code of “4.” The applicant’s counsel contends the applicant had honorable service, including three deployments, and received multiple awards. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28 The applicant’s counsel contends at the time the applicant committed the misconduct, the applicant had been struggling with depression, anxiety, and insomnia. The applicant was diagnosed with adjustment disorder with depressed mood but was showing clear signs of PTSD. The applicant AMHRR is void of a mental status evaluation. The applicant provides post- service VA medical documents reflecting a positive screen for depression and PTSD. The applicant’s counsel contends the applicant’s chain of command made a material error of discretion because the characterization of service was too harsh when the totality of the circumstances is evaluated. The applicant made a mistake in judgement and integrity by making a false statement for which the applicant had taken responsibility and based on propriety and equity; the applicant deserves to have the discharge upgraded. The record shows the applicant voluntarily requested to be discharged in lieu of trail by court-martial under AR 635-200, Chapter 10. The applicant acknowledged if the request was accepted, the applicant could be discharged under conditions other than honorable. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28 The applicant contends the discharge stigmatizes the applicant’s reputation, impedes ability to gain employment, and is evidence against the applicant’s character. The third-party statements provided with the application speak highly of the applicant. They all recognize the applicant’s good military service. The Board does not grant relief to gain employment or enhance employment opportunities. The applicant’s counsel provides evidence reflecting the applicant obtained a Master of Science Degree. 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. 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 the applicant has the following potentially mitigating diagnoses: The applicant was diagnosed with an Adjustment Disorder and ADHD in-service; however, ADHD was later refuted. Post-service, he was initially service connected for an Adjustment Disorder. Currently, he is service connected for PTSD. (2) Did the condition exist, or experience occur during military service? Yes. The applicant was diagnosed with an Adjustment Disorder and ADHD in-service; however, ADHD was later refuted. The VA service connected the applicant for an Adjustment Disorder for years following discharge, they are in agreement this was the in-service difficulty. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that in addition the documentation reflecting the applicant did not have PTSD in-service, including the applicant's denial and continued denial of combat trauma or symptoms as well as the VA service connecting him for an Adjustment Disorder after service, false statements and larceny are not a progression or sequela of PTSD. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board considered the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant’s in service diagnoses of Adjustment Disorder outweighed the basis for applicant’s separation – Committing BAH Fraud, Larceny of military property, and False Official Statement - for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant requests, through counsel, an upgrade to honorable along with a reentry (RE) code, separation program designator (SPD) code and a narrative reason change. The Board considered this contention and concurred with the opinion of the Board’s Medical Advisor, a voting member, and determine that despite applying liberal consideration of all the evidence before the Board, a change to the applicant’s characterization, reentry code and SPD code is not warranted because the applicant’s Adjustment Disorder diagnoses did not excuse or mitigate the applicant’s misconduct outlined above in section 9a (3) (4) and 3c (1) of this document. The applicant received the appropriate characterization, reentry code, and SPD code, for the discharge specified by AR 635-200, paragraph 14-12c (2). Therefore, no change is warranted. (2) The applicant’s counsel contends the applicant had honorable service, including three deployments, and received multiple awards. The Board considered the applicant’s 14 years of service including three combat tours in Iraq and the numerous awards received by the applicant but determined that these factors did not outweigh the applicant’s misconduct outlined above in section 9a (3) (4) and 3c (1) of this document. The applicant 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. (3) The applicant’s counsel contends the applicant made a mistake in judgement and integrity by making a false statement for which the applicant had taken responsibility and based on propriety and equity; the applicant deserves to have the discharge upgraded. The Board considered this contention during proceedings, ultimately the Board determined that this contention alone does not warrant an upgrade because the applicant’s AMHRR indicates the applicant committed many discrediting offenses as outline in 3c (1) of this document. Also, Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant’s available AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command and the applicant did not submit any evidence, other than the applicant’s statement, to support the contention. (4) The applicant’s counsel contends at the time the applicant committed the misconduct, the applicant had been struggling with depression, anxiety, and insomnia. The applicant was diagnosed with adjustment disorder with depressed mood but was showing clear signs of PTSD. The Board considered this contention and the opine of the Board's Medical Advisor opine that list of offenses outline in 3c (1) of this document are not a progression or sequela of the diagnoses. Moreover, all documentation, to include extensive neuropsychological assessment immediately prior to discharge, indicates an absence of cognitive deficits or psychiatric impairment. (5) The applicant’s counsel contends the applicant’s chain of command made a material error of discretion because the characterization of service was too harsh when the totality of the circumstances is evaluated. The Board considered this contention and the applicant’s assertion of inequity, however the Board determined that there is no evidence of said inequity in official records, and the applicant did not provide supporting documentation to overcome the presumption of regularity in the discharge process. The record shows the applicant voluntarily requested to be discharged in lieu of trail by court-martial under AR 635-200, Chapter 10. The applicant acknowledged if the request was accepted, the applicant could be discharged under conditions other than honorable. Also, the board did not find evidence of the command acting in an arbitrary or capricious manner. (6) The applicant contends the discharge stigmatizes the applicant’s reputation, impedes ability to gain employment, and is evidence against the applicant’s character. The board considered this contention but does not grant relief to gain employment or enhance employment opportunities. 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 Adjustment Disorder did not excuse or mitigate the basis for applicant’s separation - Committing BAH Fraud, Larceny of military property, and False Official Statement. 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 AR20210005756 1