1. Applicant's Name: a. Application Date: 11 April 2019 b. Date Received: 25 April 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general, under honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, he was arrested for a CDV in 2009. He was found not guilty and all charges were dropped and cleared from his record. The applicant also states he was discharged for a pattern of misconduct and was not given a fair chance. In a records review conducted on 4 August 2021, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Civil Conviction / NGR 600-200, Paragraph 6-35i (2) / NA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 30 October 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The applicant was informed of the following reasons: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 April 2005 / 8 years (ARNG) b. Age at Enlistment / Education / GT Score: 19 / HS Graduate /NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 31B / 4 years, 6 months, 18 days d. Prior Service / Characterizations: RA, 21 February 2006 - 13 July 2006 / HD (IADT) RA, 24 July 2007 - 6 June 2008 / HD (Deployment) e. Overseas Service / Combat Service: SWA / Iraq, 27 August 2007 - 7 May 2008 f. Awards and Decorations: AROM, NDSM, GWOTSM, ICM, ASR, OSR, AFRM-M Device g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: A Criminal History Report, dated 3 September 2009, reflects, in part, the applicant was charged with CDV-Simple Assault on 14 August 2009. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149, Criminal History Report 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. National Guard Regulation (NGR) 600-200, establishes standards, policies, and procedures for the management of the Army National Guard (ARNG) and the Army National Guard of the United States (ARNGUS) enlisted Soldiers in the functional areas of: Classification and Reclassification; Personnel Management; Assignment and Transfer, including interstate transfer; Special Duty Assignment Pay; Enlisted Separations; and, Command Sergeant Major Program. Chapter 6 sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG/ARNGUS. Paragraph 6-35i defers to AR 135-178, chapter 12 Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel from the United States Army Reserve. (1) Chapter 12 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, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (2) Chapter 12-2 states discharge action may be initiated against Soldiers when initially convicted by civil authorities, or action is taken that is tantamount to a finding of guilty when a punitive discharge would be authorized for the same or a closely related offense under the UCMJ, or the sentence by civil authorities includes confinement for 6 months or more without regard to suspension or probation; and when specific circumstances of the offense warrant discharge. (2) 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. 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant's AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable. The service record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army National Guard (ARNG). However, the applicant's record does contain a properly constituted discharge Orders 303-805, dated 30 October 2009, as amended by Orders 323-801, dated 19 November 2014. Further, the applicant's NGB Form 22, also reflect the applicant was separated in the provisions of NGB 600-200, paragraph 6-35i(2) due to civil conviction with a general, under honorable conditions characterization of service. Barring evidence to the contrary, all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The orders indicate the applicant was discharged under the provisions of AR 135-178, with a characterization of service of general, under honorable conditions. The applicant contends he was arrested for a CDV in 2009 and was found not guilty and all charges were dropped and cleared from his record. Army Regulation 135-178, 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 or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration because they are not available in the official record. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (YES) While active duty records are void of behavioral health, the applicant did go to the VA in 2008, prior to separation, with a PTSD diagnosis. Post-service, the applicant is service connected for PTSD. The basis for separation was an IPV event perpetrated by the applicant. (2) Did the condition exist or experience occur during military service? (YES) VA records diagnosed PTSD in 2008, prior to the October 2009 discharge. (3) Does the condition or experience actually excuse or mitigate the discharge? (NO) While liberal consideration was applied, in reviewing the police statement in the electronic case file, the applicant's act was purposeful and goal directed, the choice of victim was not accidental, the events leading to the assault did not involve triggering elements recreating a trauma, and there was not amnesia for the event. Moreover, the act was not uncharacteristic given the applicant noted legal involvement prior deployment along with ongoing post-service legal involvement. (4) Does the condition or experience outweigh the discharge? (NO) Despite the ADRB's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the applicant's non-medically mitigated offenses outweighed the applicant's BH diagnosis. b. Response to Contentions: (1) The applicant requests an upgrade to honorable. The service record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army National Guard (ARNG). Barring evidence to the contrary, all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The orders indicate the applicant was discharged under the provisions of AR 135-178, with a characterization of service of general, under honorable conditions. (2) The applicant contends he was arrested for a CDV in 2009 and was found not guilty and all charges were dropped and cleared from his record. The applicant did not provide any evidence supporting this. a. The Board denied the request upon finding the separation was both proper and equitable. The the Board determined that the documentation contained in the AMHRR, as well as evidence submitted by the applicant, and the available medical evidence did not support a finding that the applicant's discharge was improper or inequitable. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. b. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service because, despite applying liberal consideration, there were no BH diagnoses which mitigated the assault, the applicant did not supply sufficient independent corroborating evidence to support contentions, and 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 determined the discharge reason was proper and equitable and voted not to change it. (3) Because the characterization and reason were not changed, the SPD/RE codes will not change. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / 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 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 AR20190005437 1