1. Applicant’s Name: a. Application Date: 2 August 2022 b. Date Received: 3 August 2022 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 general (under honorable conditions). The applicant requests an upgrade to honorable, a change of narrative reason, separation program designator (SPD) code, and reentry (RE) code. b. Board Type and Decision: In a records review conducted on 19 September 2022, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 10 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-3 / General (Under Honorable Conditions) a. Date of Discharge: 22 May 2013 b. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 1 May 2013, the applicant was charged with: The Charge: Violating Article 134, UCMJ: Specification 1: Between 14 and 21 June 2012, being married, wrongfully have sexual intercourse with J.H., not the applicant’s spouse. Specification 2: Between 1 July and 1 October 2012, being married, wrongfully have sexual intercourse with Private (PVT) A.M., not the applicant’s spouse. (2) Legal Consultation Date: 6 May 2013 (3) Basis for Separation: Pursuant to the applicant’s request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 9 May 2013 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 October 2011 / 4 years b. Age at Enlistment / Education / GT Score: 24 / HS Graduate / 87 c. Highest Grade Achieved / MOS / Total Service: E-5 / 31B10, Military Police / 6 years, 9 months d. Prior Service / Characterizations: RA, 14 December 206 – 1 October 2011 / HD e. Overseas Service / Combat Service: Alaska, SWA / Iraq (20 February 2011 – 3 December 2011) f. Awards and Decorations: ARCOM, AAM-2, AGCM-2, NDSM, GWOTSM, ICM-CS, NCOPDR, ASR, OSR-2, NATOMDL, MUC g. Performance Ratings: 1 June 2011 – 31 May 2012 / Fully Capable 1 June 2012 – 1 April 2013 / Marginal h. Disciplinary Action(s) / Evidentiary Record: See Charge Sheet as described in item 3c (1). Anchorage Police Department report, dated 9 July 2012, reflects the applicant was the subject of an investigation due to a suspicious circumstance. Ms. J.H. informed the police department, Ms. J.H. and the applicant were involved in a sexual relationship and Ms. J.H. became pregnant. Ms. J.H. alleged the applicant tried to abort the child by placing a substance in Ms. J.H. drink. The substance was found to be Naproxen Sodium. On 2 August 2012, the courts issued the applicant a 20-Day Ex Parte Domestic Violence Protective Order to have no contact with Ms. J.H. The applicant denied the accusations. Memorandum of Concern, dated 6 September 2012, reflects the Anchorage Police Department informed the commander the applicant was the subject of an open investigation and in the course of the investigation it was determined the applicant was engaged in an extra-marital affair with Ms. J.H. Sworn Statement, dated 19 October 2012, reflects PVT A.M. made a statement admitting to adultery with the applicant. PVT A.M. initialed the document but did not sign the Affidavit section of the statement. District Court for the State of Alaska, dated 3 March 2013, reflects the applicant was arrested for driving under the influence when stopped by a police officer for speeding and failing to signal. The applicant admitted to drinking alcohol and showed impairment on the field sobriety test. The applicant provided a breath test, which resulted in a .13 percent. The applicant pled not guilty and was released on a $500 bond. General Officer Memorandum of Reprimand, dated 2 May 2013, reflects the applicant was driving while impaired. After being stopped for speeding and failing to signal on 3 March 2013, the applicant failed a series of Standardized Field Sobriety Tests and provided a breath sample resulting in a Breath Alcohol Content (BrAC) of .131 percent. In a personal appearance hearing conducted at Arlington, VA, on 16 November 2015, the ADRB denied the applicant’s request to upgrade the discharge under other than honorable conditions to general under honorable conditions or honorable in Docket Number AR20150007617. The board determined applicant’s separation was both proper and equitable. In a personal appearance hearing conducted at Arlington, VA, on 19 July 2018, the ADRB determined the characterization of service was too harsh based on the applicant's length and quality of service, to include combat service; post-service accomplishments; the circumstances surrounding the discharge, to include in-service diagnosis of traumatic brain injury; and was inequitable as a result. Accordingly, the board granted partial relief in the form of an upgrade to the service characterization of general under honorable conditions in Docket Number AR20160019586. The board determined the narrative reason, SPD code, and RE code were equitable and determined not to change them. In a personal appearance hearing conducted at Arlington, VA, on 6 May 2019, the ADRB denied his request to upgrade his general discharge under honorable conditions to honorable and to change the narrative reason for discharge and corresponding SPD and RE codes in Docket Number AR20180013083. Per the board's Medical Officer, a voting member, the board determined the applicant does not have a behavioral health diagnosis that is mitigating for the misconduct which led to his separation from the Army. The board determined the applicant's separation was both proper and equitable. In a records review conducted on 16 June 2022, and by a 5-0 vote, the Board determined that partial relief was warranted in the form of an upgrade to the RE-code to RE-3 in Docket AR20210002990, to allow the applicant, who expressed a desire to serve, to apply for a waiver for continued military service. The Board voted that the characterization and narrative reason were proper and equitable and voted not to change them. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant previously provided Chronological Record of Medical Care, which reflected: The applicant underwent a mental status evaluation (MSE) on 21 March 2013, which reflects the applicant was not cleared for administrative action. The applicant was rescheduled to complete neuropsychological screening before the evaluation could be completed. The command was provided a Report of Mental Status Evaluation explaining the situation. The psychiatric diagnosis or condition was deferred. The applicant reported concussion and suffering from episodic dizziness and sleep problems. Problems Chronic listed: Psychiatric diagnosis or condition deferred on Axis I; Unspecified Diagnosis; Abused Spouse; Adult Maltreatment (Victim); Screening for Traumatic Brain Injury. A medical record review indicated a recent diagnosis of persistent insomnia and prior minor concussion on 6 April 2012. The applicant underwent a neuropsychological test screen on 19 April 2013, which reflects the applicant tested positive for mild TBI and ruled out cognitive disorder, which interferes with capacity to perform as a police officer. A completed Report of Mental Status Evaluation was completed for command to explain the current status of the Chapter MSE process. The applicant was to follow-up with the writer after completion of neuropsychological evaluation. Memorandum of Concern, dated 19 April 2013, reflecting the commander’s response to a Report of Mental Status Evaluation (MSE), dated 19 April 2013. The commander provided the details of the mental status evaluation, the commander was informed the applicant was not cleared for Chapter at the time and further evaluation is needed to determine if MEB was warranted. The applicant was diagnosed with mild TBI. The commander would advise the court- martial convening authority of the MSE and the commander’s recommendation of a letter of reprimand to continue medical board proceedings instead of the chapter. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities’ last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), 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) 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. (5) 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) (6) 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 waivable and nonwaivable 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 waivable. Eligibility: Ineligible unless a waiver is granted. 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’s Army Military Human Resource Record (AMHRR), the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable, a change of narrative reason, SPD code, and RE code. The evidence of AMHRR confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, in consultation with legal counsel, voluntarily requested, in writing, a discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. The applicant requests the narrative reason for the discharge be changed. The applicant was separated under the provisions of Chapter 10, AR 635-200, with an under other than honorable conditions discharge. The narrative reason specified Army Regulations for a discharge under this paragraph is “In Lieu of Trial by Court-Martial,” and the separation code is “KFS.” Army Regulation 635-8, Separation Processing and 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 to be entered under this regulation. It is noted the applicant’s discharge characterization was upgraded to general (under honorable conditions) by the ADRB on 19 July 2018. The applicant requests the RE and SPD codes be changed. SPD 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 635-8, Separation Processing and 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. RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. Eligibility: Ineligible unless a waiver is granted. The applicant’s RE code was previously upgrade from RE-4 by the ADRB to allow the applicant, who expressed a desire to serve, to apply for a waiver for continued military service. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): None b. The applicant presented the following additional contention(s): Applicant provided oral argument and statements in support of the contentions provided in written submissions and in support of previously submitted documentary evidence. c. Counsel / Witness(es) / Observer(s): None 10. 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: IPV, TBI and PTSD. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that applicant experienced IPV while in the military; VA has established via service connection that applicant's diagnosis of TBI and PTSD occurred during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a BH experience, IPV, which partially mitigates applicant’s adultery. In some instances, IPV can occur as a result of one partner engaging in an extra-marital relationship. In other cases, IPV can lead one partner to engage in an extramarital relationship. The available FAP documentation is very sparse and does not provide detailed information regarding either the details of spousal abuse or the reasons for the spousal abuse. Records, however, do indicate that the applicant was the victim of IPV, therefore the applicant’s misconduct of engaging in adultery is partially mitigated. Applicant’s diagnosis of TBI does not mitigate engaging in adultery. Specifically, the actions involved in maintaining an inappropriate relationship involve planning and organization and indicate intact brain functioning. Also, PTSD does not mitigate adultery as PTSD does not affect one’s ability to understand the difference between right from wrong and act in accordance with the right. When considering all the factors involved in this case to include the partial mitigation due to IPV, it is the opinion of the writer that, this partial mitigation notwithstanding, the weight of the applicant’s misconduct far outweighs any mitigation offered under Liberal Consideration. (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 available evidence did not support a conclusion that the applicant’s IPV, TBI and PTSD fully outweighed the basis for applicant’s separation – adultery. b. Response to Contention(s): The applicant did not make any contentions or provide any evidence to support that the discharge was improper or inequitable. The Board reviewed all available evidence and determined that no relief was warranted at this time. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 IPV, TBI and PTSD did not excuse or mitigate the offenses of adultery. 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. 11. 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 AR20220006607 1