1. Applicant's Name: a. Application Date: 11 January 2019 b. Date Received: 16 January 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under honorable conditions) discharge to honorable. The applicant seeks relief contending, in effect, that the applicant was never convicted of a misdemeanor or above and never received a DUI. The applicant contends that the allegations of domestic violence was disputed and dismissed in court as well as the charge for a driving while ability impaired (DWAI). Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV), notes indicate diagnoses of Adjustment Disorder, Other Specified Family Circumstance, Partner Relational Problem and mTBI. The applicant is 60% service-connected; 30% for mTBI from the VA. In summary, the applicant's BH diagnoses are not mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 1 May 2020, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200 / Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 13 December 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 April 2016 (2) Basis for Separation: The applicant was informed of the following reasons: for striking a telephone pole and attempting to flee the scene of the accident on 27 November 2015; Being arrested for domestic violence/harassment towards his wife (E.L.B) on or about 9 November 2014 and 5 April 2015; and Failing to be at his appointed place of duty and loss of his Military Common Access Card on or about 27 February 2015 and 7 September 2015 (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: Memorandum for Record, dated 13 May 2016, indicates the applicant was given until 3 May 2016 to sign his election of rights and submit his matters. As of 13 May the applicant had not submitted any additional matters in his defense or made any election of his right under AR 635-200, Chapter 14-12c, Commission of a Serious Offense. In accordance with, paragraph 2-4c, AR 635-200, a failure to submit election of rights within seven duty days of notification constitutes a waiver of those rights. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: On 12 October 2016 the separation authority having reviewed the notification memorandum with enclosures, chain of command's recommendation, the applicant rebuttal matters, and the Medical Evaluation Board Packet and other documents in the packet, and the Medical Evaluation Board's recommendation that the applicant be referred to a Physical Evaluation Board (PEB), directed that the applicant be separated from the Army prior to the expiration of his current term of service with a characterization of service of General (Under Honorable Conditions). It was determined that the applicant's medical and mental condition were not the direct or substantial contributing cause of the conduct that led to the 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 February 2013 / 3 years, 21 weeks b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 104 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92Y10, Unit Supply Specialist / 3 years, 10 months, 10 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: AAM, NDSM, GWTEM, KDSM, ASR, OSR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Military No-Contact Order, dated 7 April 2015. Law Enforcement Report, dated 29 October 2015, which indicates the applicant was the subject of investigation for criminal contempt 2nd Degree (Civil). Military Police Report, dated 9 November 2014, which indicates the applicant was the subject of investigation for harassment 2nd degree, domestic disturbance, and criminal mischief 4th degree Military Police Desk Blotter, dated 27 November 2015, indicates the applicant was the subject of investigation for driving while intoxicated and leaving the scene of an incident without reporting. CG Article 15, dated 12 November 2015, for failing to go at the time prescribed to his appointed place of duty 27 February 2015, 5 March 2015, 6 March 2015, 25 March2015, and 9 September 2015, and without proper authority, through neglect lose his military identification card, of a value of less than $500.00, military property of the United States on 7 September 2015. The punishment consisted of forfeiture of $495.00 pay and extra duty for 14 days. Medical Documents from the North Country Neurology, P.C. Sleep Disorder Center & Magnetic Resonance Imaging indicating the applicant had been diagnosed with Lupus by Rheumatology. Medical Documents from Samaritan Medical Practice, PC, Samaritan Neurosurgery. Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement. Department of Veterans Affairs VA/DOD Joint Disability Evaluation Board Claim, dated 21 June 2016. Medical Evaluation Board Proceedings, date 16 August 2016, which indicates the applicant had the following conditions/defects: migraines headaches with aura; tension headaches; and occipital neuralgia failed to meet retention standards IAW AR 40-501, Chapter 3-30g. Several negative counseling statements for various acts of misconduct and duty performance. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 19 April 2016, which indicates the applicant was diagnosed with an Axis I for Z56.89-Other Problem Related to Employment and Axis III for Chronic Headaches/Neoplasm of the Pituitary Gland. It was noted that the applicant could understand and participate in administrative proceedings and appreciated the difference between right and wrong. The applicant was screened for PTSD; TBI; and Military Sexual Trauma. Only his TBI screen was positive (result of being knocked unconscious in the back of a Humvee in September 2014). However, he was evaluated and cleared by TBI for TBI related problems. He did have ongoing headaches, but they were not associated with trauma. The applicant did have significate medical issues, and may have been referred to MEB for those medical issues. However, that was a matter for his PA to address. It was beyond the scope of the evaluation. As for the applicant misconduct, there was no evidence that his behaviors were in any way influenced or cause by a physical or mental condition. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; Town Court document of charges; offer of plea bargain from the State of Justice Court; and letter from the Office of US Senator Marco Rubio. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. Paragraph 14-12c states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. National Defense Authorization Act 2017 provided 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) or Traumatic Brain Injury (TBI) in connection with combat or sexual assault or sexual harassment as a basis for discharge review. Further, it provided 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; as a basis for the discharge. In August 2017, the Office of the Under Secretary of Defense for Personnel and Readiness provided further clarifying guidance 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. 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms the applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained on Active duty. The applicant seeks relief contending that he was never convicted of a misdemeanor or above and never received a DUI. The applicant contends that the allegations of domestic violence was disputed and dismissed in court as well as the charge for a driving while ability impaired (DWAI). The applicant's contentions were noted; however, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial. The service record indicates the applicant committed several discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant's discharge is commensurate with his overall service record. 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. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 1 May 2020, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Issue a New Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20190000647 1