1. Applicant's Name: a. Application Date: 2 May 2022 b. Date Received: 26 May 2022 c. Counsel: 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, through counsel, requests an upgrade to honorable. The applicant seeks relief contending, in effect, following basic training and a 16-week military police (MP) course, the early part of the applicant's Army career was very successful. The applicant received several service medals and badges. Subsequently, while assigned in Washington State, the applicant began to experience a significant level of alcohol abuse. The suicide of the applicant's best friend and fellow Soldier in 2015 generated the applicant's first heavy use of alcohol. Although the applicant went through a period of alcohol abuse rehabilitation while on assignment in WA, there was no significant improvement of the applicant's alcoholism. The applicant's subsequent assignment to the 558th MP unit at Schofield Barracks, Hawaii, triggered a sequence of events culminating with the applicant's commander's generation of criminal charges against the applicant, which the applicant attributes to the poor decisions the applicant made while assigned to that command. Specifically, the applicant believes to have usually been a good Soldier, and had successfully participated in certain deployments, however, the applicant could not stop an excessive use of alcohol. A very short marriage, followed by the applicant's spouse's deployment to Guam and subsequent request for divorce in 2017, resulted in even greater use and dependence of alcohol. While separated and pending divorce, the applicant began to see a female colleague, which the female's commanding officer resented. Because the applicant was still married, although separated and pending divorce, the commander threatened the applicant with a criminal charge of adultery. Due to a minor altercation in the barracks the applicant had to move back to the barracks from home following separation from the applicant's spouse. This and related financial problems, led to an initial Article 15 and reduction in grade. The applicant was continuing to suffer from severe alcoholism throughout this period. Later in 2018, the applicant's commanding officer gave the applicant a direct order not to drink; but it was an order that the applicant simply was unable to obey. Subsequently, the applicant was charged with disobeying a direct order, and threatened with a court-martial. The applicant had sought help from a local Alcoholics Anonymous Chapter, but the applicant's commander continued to pursue disciplinary actions, finally resulting in the threat of referral to a summary court-martial. In order to avoid a court-martial, the applicant made the decision to accept a chapter 10. Following the applicant's discharge, the applicant believes that the diagnosis of alcoholism was not properly examined and considered when the applicant was discharged under other than honorable conditions. The applicant does not believe the alleged offenses ever warranted criminal charges, though if the applicant could do it over, the applicant certainly would have acted differently. The applicant has maintained sobriety since the rehab session (with a minor relapse). The applicant would respectfully request the opportunity for a new start. Importantly, an upgrade to the applicant's discharge, would help the applicant to be able to apply for more positions which align with the applicant's experience and education, and would possibly be permitted to apply for a security clearance. The applicant further details the contentions in an allied self-authored statement provided with the application. b. Board Type and Decision: In a telephonic personal appearance hearing conducted on 8 May 2023, and by a 5-0 vote, the Board determined that clemency is warranted in order to make the applicant eligible for medical and substance abuse treatment at the VA. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to General. The Board determined that the narrative reason for separation and the reentry eligibility (RE) code are proper and equitable and voted not to change them. 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-4 / Under Other Than Honorable Conditions b. Date of Discharge: 31 January 2018 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 30 November 2017, the applicant was charged with: Charge I: Violating Article 90, Uniform Code of Military Justice (UCMJ) Specification 1: In that the applicant, U.S. Army, having received a lawful command from a Captain, the applicant's superior commissioned officer, then known by the applicant to be the superior commissioned officer, to abstain from drinking alcohol, or words to that effect, did, on or near the island of Oahu, Hawaii, on or about 20 October 2017, willfully disobey the same. Specification 2: In that the applicant, U.S. Army, having received a lawful command from a Captain, the applicant's superior commissioned officer, then known by the applicant to be the superior commissioned officer, to not contact Private Two (PV2/E-2), or words to that effect, did, on or near the island of Oahu, Hawaii, on divers' occasions between on or about 23 October 2017 and 6 November 2017, willfully disobey the same. Charge II: Violating Article 128, UCMJ Specification 1: In that the applicant, U.S. Army, did, on or near the island of Oahu, Hawaii, on or about 18 October 2017, unlawfully strike a PV2 C__ S__ on the thigh with the applicant's hand. Specification 2: In that the applicant, U.S. Army, did, on or near the island of Oahu, Hawaii, on or about 19 October 2017, unlawfully touch PV2, on the neck with the applicant's hand, unlawfully lay the applicant's body on top of a PV2's body and unlawfully touch PV2 on the shoulders with the applicant's hands. Specification 3: In that the applicant, U.S. Army, did, on or near the island of Oahu, Hawaii, on or about 20 October 2017, unlawfully touch a PV2 on the shoulders with the applicant's hands and strangle a PV2 by the neck with the applicant's hand. Charge III: Violating Article 134, UCMJ Specification 1: In that the applicant, U.S. Army, a married individual, did, on or near the island of Oahu, Hawaii, on divers' occasions between on or about 15 September 2017 and 20 October 2017, wrongfully have sexual intercourse with a PV2, an individual not the applicant's spouse, such conduct being to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. Specification 2: In that the applicant, U.S. Army, did, on or near the island of Oahu, Hawaii on or about 20 October 2017, wrongfully communicate to a PV2 a threat to injure a PV2's reputation by posting pictures of the PV2 in underwear online and sending those pictures to the PV2's family members, such conduct being to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. (2) Legal Consultation Date: 18 December 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: NA (5) Separation Decision Date / Characterization: 11 January 2018 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 March 2014 / 5 years b. Age at Enlistment / Education / GT Score: 24 / Bachelor's Degree / 110 c. Highest Grade Achieved / MOS / Total Service: E-4 / 31B10, Military Police / 3 years, 10 months, 20 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AGCM, NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The applicant's Enlisted Record Brief, dated 6 January 2011, reflects the applicant was flagged for adverse action (AA), effective 17 October 2017, and elimination - field initiated (BA), effective 15 September 2017; was ineligible for reenlistment due to pending separation (9V). FLAG codes: AA, BA Reenlistment/Prohibition code: 9V Orders 018-0001, dated 18 January 2017, reflect the applicant was to be reassigned to the U.S. Army Transition Point and discharged on 31 January 2017 from the Regular Army. The applicant's DD Form 214, reflects the applicant had not completed the first full term of service. The applicant was discharged under the authority of AR 635-200, chapter 10, with a narrative reason of in lieu of trial by court-martial. The DD Form 214 was not authenticated with the applicant's electronic signature. The applicant's DD Form 214, reflects the applicant was reduced from E-3 to E-1 effective 11 January 2018. 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; DD Form 214; self-authored statement; Fresh Start Recovery Center letter; six third-party letters; Legal representation letter. 6. POST SERVICE ACCOMPLISHMENTS: Employed as a security guard. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-7c states Under Other Than Honorable Conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. (6) Paragraph 10-8a stipulates a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. (See chap 3, sec II.) (7) 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-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 an upgrade to honorable. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The evidence in the applicant's Army Military Human Resource Record (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. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and indicated an understanding an under other than honorable conditions discharge could be received, and the discharge would have a significant effect on eligibility for veterans' benefits. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends, in effect, following the applicant's discharge, the applicant believes that the diagnosis of alcoholism was not properly examined and considered when the applicant was discharged under other than honorable conditions. The applicant states to have sought help from a local Alcoholics Anonymous Chapter while in the military. The applicant provided a letter from Fresh Start Recovery Center, dated 8 July 2019, that states the applicant was admitted to a 6-8 week Fresh Start Recovery Center Outpatient IOP Program on 28 May 2019 and has been fully engaged in treatment, is a positive member in the community, and has had all negative urinalyses. The applicant did not submit any evidence, other than the applicant's statement, to support the contention of an alcoholism diagnosis while in service. The applicant's AMHRR is void of an alcoholism diagnosis. The applicant contends, in effect, the alleged offenses did not warrant criminal charges. The AMHRR indicates the applicant committed many discrediting offenses. 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 contends an upgrade of the discharge will allow the applicant to be able to apply for more positions which align with the applicant's experience and education and would possibly be permitted to apply for a security clearance. The Board does not grant relief to gain employment, enhance employment opportunities, or apply for a security clearance. The third-party statements provided with the application speak to the applicant's challenges with alcohol. The applicant's parents continue to assist with the applicant's alcoholism disease. They request an upgrade for their son which would allow him to apply for more challenging work and get a state or federal security clearance, to help the applicant move forward with confidence and secure a strong reason to remain sober. The applicant marked the reprisal/whistleblower box on the DD Form 293; however, the applicant did not submit any evidence to support or substantiate why the applicant checked the box. 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): N/A b. The applicant presented the following additional contention(s): N/A c. Counsel / Witness(es) / Observer(s): 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: Anxiety Disorder, unspecified Neurosis. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the diagnosis of Anxiety DO was made while applicant was on active duty. VA service connection for Neurosis establishes it occurred during active military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that there are no mitigating BH conditions. While the applicant has been diagnosed with Anxiety DO (VA diagnosis of Neurosis is an equivalent diagnosis to Anxiety DO), this condition does not mitigate applicant's multiple acts of misconduct given that Anxiety DO does not affect one's ability to distinguish right from wrong and act in accordance with the right. (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 Anxiety Disorder and Neurosis outweighed the assault, adultery, and failure to obey a lawful order basis for separation for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends, in effect, following the applicant's discharge, the applicant believes that the diagnosis of alcoholism was not properly examined and considered when the applicant was discharged under other than honorable conditions. The Board liberally considered this contention but determined that the available evidence did not support a conclusion that the applicant's Anxiety Disorder and Neurosis outweighed the assault, adultery, and failure to obey a lawful order basis for separation. More specific to the applicant's contention is the Board's answer that the Kurta memorandum and analysis does not treat alcohol abuse as a behavioral health condition that mitigates or excuses Servicemember misconduct. However, the Board does want to make substance abuse treatment at the VA available to the applicant. Therefore, a characterization upgrade to General is appropriate. (2) The applicant contends, in effect, the alleged offenses did not warrant criminal charges. The Board considered this contention, but determined that applicant, with counsel, voluntarily requested to be discharged in lieu of trial by court-martial under the provisions of Chapter 10, AR 635-200. (3) The applicant contends an upgrade of the discharge will allow the applicant to be able to apply for more positions which align with the applicant's experience and education and would possibly be permitted to apply for a security clearance. The Board considered this contention but does not grant relief to gain employment or enhance employment opportunities. c. The Board determined that clemency is warranted in order to make the applicant eligible for medical and substance abuse treatment at the VA. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to General. The Board determined that the narrative reason for separation and the reentry eligibility (RE) code are proper and equitable and voted not to change them. 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 to grant clemency and upgrade the applicant's characterization to General so that applicant may receive medical and substance abuse treatment at the VA. The Board, despite applying liberal consideration of all evidence, did not find that applicant's Anxiety Disorder or Neurosis excused or mitigated the applicant's offenses of assault, adultery, and failure to obey a lawful order. The Board did not find that a totality of the applicant's service record or post-service accomplishments merited upgrade. 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. The applicant's misconduct fell below that level of meritorious service warranted for an upgrade to Honorable discharge, but upgrade to General is warranted for clemency purposes. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, and the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under Honorable Conditions 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 AR20220008537 1