1. Applicant’s Name: a. Application Date: 4 April 2023 b. Date Received: 6 April 2023 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) and an RE code change. The applicant seeks relief contending, in effect, there were errors with the processing of the applicant’s Uniform Code of Military Justice (UCMJ), to include the search warrant that resulted in the discovery of firearms when there was no probable cause. The applicant was deemed a flight risk and was detained in a county detention center for the duration of the applicant’s processing. The applicant believes that the evidence that led up to the applicant’s discharge was given higher value based on rumors. The applicant was previously an honorable soldier and eligible for attending the promotion board. b. Board Type and Decision: In a records review conducted on 4 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 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: 9 August 2022 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 26 May 2022, the applicant was charged with: (a) Charge I: Violating Article 92, UCMJ, for: * Specification 1: Wrongfully possessing a personally owned weapon, a Sig Sauer handgun, in the barracks on or about 24 May 2022 * Specification 2: Failing to obey a lawful order by wrongfully possessing an unregistered firearm, a shotgun on or about 24 May 2022 (b) Charge II: Violating Article 115, UCMJ, for wrongfully communicating a threat to kill a soldier to that same soldier by stating “shut [Specialist E__] up for good,” or words to that effect. (2) Legal Consultation Date: 21 June 2022 (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: 18 July 2022 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 May 2020 / 3 years and 18 weeks b. Age at Enlistment / Education / GT Score: 24 / Associate Degree / 113 c. Highest Grade Achieved / MOS / Total Service: E-4 / 13B10, Cannon Crewmember / 2 years, 2 months, and 14 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) A DD Form 458 (Charge Sheet) shows that on 26 May 2022, the applicant was charged with: (a) Charge I: Violating Article 92, UCMJ, for: * Specification 1: Wrongfully possessing a personally owned weapon, a Sig Sauer handgun, in the barracks on or about 24 May 2022. * Specification 2: Failing to obey a lawful order by wrongfully possessing an unregistered firearm, a shotgun on or about 24 May 2022. (b) Charge II: Violating Article 115, UCMJ, for wrongfully communicating a threat to kill a soldier to that same soldier by stating “shut [Specialist E__] up for good,” or words to that effect. (2) The AMHRR is void of a copy of the complete separation proceedings, however it does provide a memorandum, U.S. Army Trial Defense Service, Fort Drum, NY, Request for Discharge in Lieu of Trial by Court-Martial - (Applicant), 21 June 2021, shows that the applicant voluntarily requested a discharge in lieu of trial by court-martial. (3) Memorandum, Headquarters, Fort Drum, Fort Drum, NY, Request for Discharge in Lieu of Trial by Court-Martial in U.S. versus (Applicant), 18 July 2022, provides that the applicant’s request for discharge in lieu of trial by court-martial was approved with an under other than honorable conditions characterization of service and reduction in rank to the lowest enlisted grade (E-1). (4) Law Enforcement Report - Final, 25 July 2022, shows an investigation established the applicant committed the offenses of larceny of government property (five counts), communicating a threat, failure to obey a lawful order or written regulation in accordance with AR 190-13, paragraph 8-1 (Registration of Privately Owned Weapons) (three counts), criminal possession of a firearm, criminal possession of weapons 3rd degree (ammo clip) (seven counts), criminal possession of a weapon 4th degree, and. (5) A DA Form 4833 (Commander Report of Disciplinary or Administrative Action), shows the applicant was referred on 25 July 2022 for communicating a threat, failure to obey a lawful order or written regulation in accordance with AR 190-13, paragraph 8-1 (Registration of Privately Owned Weapons), criminal possession of a firearm, criminal possession of a weapon 4th degree, and criminal possession of weapons 3rd degree (ammo clip) (seven counts), larceny of government property (five counts). The applicant was separated from the Army with an other than honorable discharge. (6) The applicant’s DD Form 214, shows the applicant had not completed the first full term of service. The applicant was discharged on 9 August 2022 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 authenticated with the applicant’s signature. The applicant was reduced E-4 to E-1. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Mental Status Evaluation, 14 July 2022, shows the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. The applicant had been screened for PTSD and TBI with negative results. The command was provided recommendations and comments. The applicant was diagnosed with problems with employment. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; VA Letter; six character letters; criminal record. 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), 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) 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) 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) An under other than honorable conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of soldiers in the Army. (5) 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) * DD Form 2808 and DA Form 3822 * A complete copy of all reports of investigation * Any statement, documents, or other matter considered by the commanding officer in making their recommendation, including any information presented for consideration by the soldier or consulting counsel * A statement of any reasonable ground for belief that the soldier is, or was at the time of misconduct, mentally defective, deranged, or abnormal * When appropriate, evaluation by a psychiatrist will be included (6) Paragraph 10-4b, consideration should be given to the soldier’s potential for rehabilitation, and his or her entire record should be reviewed before taking action. (7) 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, section II.) (8) Paragraph 10-8b 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. (9) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army’s best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. e. Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “KFS” as the appropriate code to assign enlisted soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, In Lieu of Trial by Court-Martial. f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: (1) RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. (2) RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. (3) RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. a. The applicant requests an upgrade to honorable and an RE code change. The applicant’s AMHRR, the issues, and documents submitted with the application were carefully reviewed. b. The applicant’s DD Form 214 shows the applicant served 2 years, 2 months, and 14 days. The applicant was charged with wrongfully possessing a personally owned weapon and failing to obey a lawful order. On 21 June 2022, the applicant voluntarily requested a discharge in lieu of trial by court-martial after charges were preferred against the applicant. On 9 August 2022, the applicant was discharged with a under other than honorable conditions characterization of service. c. The applicant requests the RE code to be changed. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on AR 601-210, the applicant was appropriately assigned an RE code of “4.” An RE code of “4” cannot be waived, and the applicant is no longer eligible for reenlistment. d. The applicant contends, in effect, there were errors with the processing of the applicant’s UCMJ, to include the search warrant that resulted in the discovery of firearms when there was no probable cause. A law enforcement report shows the staff judge advocate legal opined that there was probable cause to believe the applicant violated articles of the UCMJ. e. The applicant contends, in effect, that the evidence that led up to the applicant’s discharge was given higher value based on rumors. Per the law enforcement report a group of soldiers were interviewed and gave sworn statements. The sworn statements are not available for review. f. The applicant states that they was previously an honorable soldier and eligible for attending the promotion board. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. g. The Command Management Division provided the CID reports to the applicant on 28 November 2023 requesting comments, however, the applicant has a 15 day suspense to respond. h. AR 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. i. 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. 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): None. 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: The applicant held an in- service diagnosis of Adjustment Disorder and post-service connected for Major Depressive Disorder (MDD) as a progression. (2) Did the condition exist or experience occur during military service? Yes. The applicant held an in-service diagnosis of Adjustment Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that although the applicant had a history of depression with in-service emergence due to stressors, this did not impair the applicant's ability to understand the rules, regulations, laws, etc guiding possession of weapons and consequences of not complying. (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 Disorder and post-service connected for Major Depressive Disorder (MDD) as a progression outweighed the basis for applicant’s separation – wrongfully possession of a shotgun and a handgun and communicating a threat to a fellow service member – for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends, in effect, there were errors with the processing of the applicant’s UCMJ, to include the search warrant that resulted in the discovery of firearms when there was no probable cause. The Board considered this contention and found no corroborating evidence to support the applicant’s assertion. 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. (2) The applicant contends, in effect, that the evidence that led up to the applicant’s discharge was given higher value based on rumors. The Board considered this contention and found no corroborating evidence to support the applicant’s assertion. 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. Based on the serious nature and non-behavioral health mitigation of the misconduct the board concurred with the current discharge. 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 Adjustment Disorder and post-service connected for Major Depressive Disorder (MDD) as a progression did not excuse or mitigate the wrongfully possession of a shotgun and a handgun and communicating a threat to a fellow service member offense. 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, 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 / 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 AR20230007231 1