1. Applicant’s Name: a. Application Date: 20 October 2020 b. Date Received: 2 November 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. b. The applicant states, in effect they are requesting an upgrade to their discharge because the Army has caused them to have mental health conditions. Their poor mental health has caused them to think irrationally, which contributed to the poor decisions that led to their discharge. They had continuous honorable service prior to the UOTHC of service they received during the second re-enlistment and despite their honorable periods they have been denied the treatment they deserve and desperately need. They were diagnosed with a major depression disorder and anxiety while serving in the army and both diagnoses makes it very difficult for them to retain employment. They had several good years prior to receiving the UOTHC discharge, and they volunteered for Chapter 17 because their mental health was so bad, that they could no longer take it. c. Board Type and Decision: In a records review conducted on 1 December 2023, 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 / UOTHC b. Date of Discharge: 4 November 2019 c. Separation Facts: voluntary discharge under provision of AR 635-200, Chapter 10, In Lieu of Trial by Court-Martial. (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 August 2016 / 3 years b. Age at Enlistment / Education / GT Score: 19 / Highschool Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-6 / 25U10 Signal Support System Specialist / 8 years, 11 months, 26 days d. Prior Service / Characterizations: 8 November 2010 - 24 November 2013/ HD e. Overseas Service / Combat Service: Hawaii / None f. Awards and Decorations: ARCOM-2, AAM-3, AGCM-2, NDSM, GWTSM, NCOPDR-2, ASR, OSR, MOVSM g. Performance Ratings: 1 November 2013 – 26 June 2014 / Among The Best 27 June 2014 – 26 June 2015 / Marginal 1 April 2016 – 24 January 2017 / Highly Qualified 25 January 2017 – 31 October 2017 / Highly Qualified 1 November 2017 – 31 October 2018 / Exceeded Standard h. Disciplinary Action(s) / Evidentiary Record: (1) An Enlistment/ Reenlistment Document provides the applicant reenlisted in the Army at the rank of sergeant (E-5) for 3 years on 17 August 2016. (2) Orders 309-103 provides the applicant reported to Fort Hood, Texas on 10 March 2017 after a permanent change of station from Fort Drum, New York. (3) A Record of Proceedings Under Article 15 UCMJ document signed 25 March 2019 provides the applicant received a NJP for violation of 3 specifications of the UCMJ: failure to obey a lawful general regulation; Article 92, wrongfully damaged by kicking, a television with the value of $500; Article 109 and for having sexual intercourse with a married person not their spouse on or about 1 October 2017 and on or about 11 July 2018; Article 134. Punishment consisted of reduction in rank to E-5, forfeiture of $1,603 for 2 months and extra duty for 45 days. (4) An Enlisted Record Brief (ERB) provides the applicant was flagged for an investigation adverse action on 26 March 2019 and they were demoted to E-1 on 9 October 2019. (5) The AMHRR is void of the applicant’s entire separation proceedings, however the Army Review Board Agency requested the applicant to provide copies of their separation files on 20 August 2021; as of date copies were not provided. (6) Orders 219-0127, provides the applicant was issued a separation date of 4 November 2019. (7) A Certificate of Release or Discharge From Active Duty (DD Form 214) provides that on 4 November 2019 the applicant was discharged from the army. * Authority: AR 635-200, Chapter 10 * Narrative Reason: In Lieu of Trial by Court-Martial * Service Characterization: Under Other than Honorable Conditions * Net Service: 8 years, 11 months, and 26 days * Signature: Electronically signed by the applicant * Remarks: * Continuous Honorable Active Service 8 November 2018 - 24 November 2013; * Completed first full term of service; * Immediate Reenlistments: 25 November 2013 – 16 August 2016; * 17 August 2016 - 4 November 2019 i. Lost Time / Mode of Return: None. j. Behavioral Health Condition(s): (1) Applicant provided: A Department of Veteran Affairs Decision letter, provides the applicant was diagnosed with a Major depressive disorder, generalized anxiety disorder and alcohol use disorder. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Discharge Review) application, a Department of Veteran Affairs Decision letter that provides the applicant was diagnosed with a Major depressive disorder, anxiety and a alcohol use disorder. 6. POST SERVICE ACCOMPLISHMENTS: None submitted in support of 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), 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 (Active Duty Enlisted Administrative Separations) provides the basic authority for the separation of enlisted personnel. Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (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. When authorized, it 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. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service, they have been awarded a personal decoration or if warranted by the circumstances of a specific case. (4) Chapter 10, Discharge in Lieu of Trial by Court Martial is applicable to members who had 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 discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate, unless the record was so meritorious it would warrant an honorable. (a) 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. (b) The following data will accompany the request for discharge: * A copy of a 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 his/her 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 e. 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 f. 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 g. 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 h. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 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 general under honorable conditions. The applicant’s DD Form 214 provides the applicant received a under other than honorable conditions characterization of service (UOTHC), this discharge is normally appropriate for a soldier who voluntary requests discharge in lieu of trial by courts-martial. b. Based on the available evidence the applicant enlisted in the army at the age of 19, they completed thirteen military education trainings such as the combat lifesaver course, master fitness trainer and the CompTIA security plus training. The applicant also received many awards during their time in service which included, two Army Good Conduct Medals, three Army Achievement medals, and two Army Commendation medals. They honorably completed their first term of service and re-enlisted for the second time for three years in 2016. They advanced to the Rank of staff sergeant (E-6) in 2017 and was demoted to sergeant (E-5) in 2019 after receiving a non-judicial punishment on 25 March 2019. They were flagged for an adverse action investigation on 26 March 2019 and was demoted to private (E-1) before they were discharged. c. A Review of the record provides administrative irregularity occurred in the proper retention of official records, specifically, the AMHRR is void of the applicant’s entire separation packet to include a charge sheet, due to the lack of evidence we are unable to provide the specific facts and circumstances surrounding the reason why the applicant voluntarily requested to be discharged in Lieu of Trial by courts-martial. Notwithstanding the lack of evidence, the record provides the applicant was issued separation orders, and signed a properly constituted DD Form 214, that shows the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10 with an Under Other than Honorable Conditions characterization of service on 4 November 2019 completing a total of 8 years, 11 months, and 26 days. Based on the discharge date it is reasonable to believe the applicant was involuntarily extended which resulted in exceeding their 3 year reenlistment obligation by approximately 2 years and 18 days. d. Army Regulation 635-200 states a 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. e. 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? 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/experiences: MDD (70% SC); Adjustment DO; Anxiety DO NOS; Anorexia nervosa; Bipolar DO, GAD; MST. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the diagnoses of MDD, Adjustment DO, Anxiety DO NOS, Anorexia nervosa and h/o MST all were made or occurred during military service. VA service connection for MDD establishes occurrence of MDD during service. Bipolar DO and GAD are not service connected by the VA. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined that the military medical record indicates that the applicant was separated for fraternization, adultery, and revenge pornography. Additionally, the applicant’s disciplinary record indicates that the applicant was disciplined for failure to obey lawful regulation, wrongfully damaging TV by kicking it and having sexual intercourse with married person not their spouse The record also indicates that the applicant has been diagnosed with multiple BH conditions: MDD, Adjustment DO, Anxiety DO NOS, Anorexia nervosa, Personality DO, Alcohol Use DO, moderate. The VA record indicates the applicant has been service connected for MDD. The applicant has also been diagnosed with Bipolar DO, Generalized Anxiety DO and has reported to the VA that the applicant was the victim of an MST while on active duty. Review of his record indicates that, during most of his BH encounters, the applicant presented predominately with depression and some anxiety. Regarding the question of mitigation: MDD and MST would mitigate the failure to obey a lawful regulation given their association with oppositional behavior toward superiors. They would also mitigate wrongfully damaging a TV by kicking it given that both conditions are characterized by irritability and decreased frustration tolerance. The remainder of his misconduct would not be mitigated by any of his BH conditions, including MDD and MST, given that none of his BH conditions affect one’s ability to tell right from wrong and act in accordance with the right. While the applicant has been diagnosed with Bipolar DO by the VA, there is no indication in his military records that he was in a manic state when he engaged in fraternization, adultery, and revenge porn. Indeed, review of his medical records during the time these offenses were committed indicates that the applicant’s predominant affective state was depressed and anxious. As such, while liberal consideration was applied, there is no mitigation for the offenses of fraternization, adultery, or revenge porn. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the available evidence did not support a conclusion that the applicant’s Adjustment DO; Anxiety DO NOS; Anorexia nervosa; Bipolar DO, GAD; MST fully outweighed the basis for applicant’s separation – fraternization, adultery, and revenge pornography– for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends the Army has caused them to have mental health issues, records provides the applicant was diagnosed with a major depressive disorder, generalized anxiety, and alcohol use disorder. They are currently service connected under Chapter 17 with the Department of Veteran Affairs for treatment purposes only. The Board considered this contention and determined that the available evidence did not support a conclusion that the applicant’s Adjustment DO; Anxiety DO NOS; Anorexia nervosa; Bipolar DO, GAD; MST fully outweighed the basis for applicant’s separation – fraternization, adultery, and revenge pornography– for the aforementioned reasons. 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 because, despite applying liberal consideration of all the evidence before the Board, the applicant’s Adjustment DO; Anxiety DO NOS; Anorexia nervosa; Bipolar DO, GAD; MST did not excuse or fully mitigate the fraternization, adultery, and revenge pornography offenses. 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. Therefore, the applicant’s Under Other Than Honorable Conditions discharge was proper and equitable as the applicant’s conduct fell below that level of satisfactory service warranting a General discharge or meritorious service warranted for an upgrade to Honorable discharge. (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 AR20210009058 1