1. Applicant's Name: a. Application Date: 14 April 2019 b. Date Received: 29 April 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to honorable or general (under honorable conditions). The applicant seeks relief contending, in effect, that on 27 April 2018, she was arrested for Aggravated Assault with a deadly weapon. On 28 March 2019, she was not found guilty of the charge; she was discharged because of the arrest, she was not convicted of the crime. In a records review conducted on 28 July 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: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 4 February 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 21 December 2018 (2) Basis for Separation: The applicant was informed of the following reasons: for having committed an assault upon D.M.D., by shooting her with a loaded firearm and thereby intentionally inflicting grievous bodily harm, to wit: gunshot wound to the abdomen. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: On 25 September 2018, the applicant requested consideration of her case by an administrative separation board. On 6 November 2018, the applicant voluntarily waived consideration of her case by an administrative separation board contingent upon her receiving a characterization of service no less favorable than general (under honorable conditions) (5) Administrative Separation Board: On 14 December 2018, after reviewing the administrative separation file pertaining to the applicant under the provisions of Army Regulation 635-200, paragraph 14-12c, the separation authority disapproved her conditional waiver. (6) Separation Decision Date / Characterization: The separation authority having reviewed the applicant's request for an unconditional waiver of her right to have her case considered by an administrative board. On 25 January 2018 directed the separation of the applicant from the US Army with an Under Other Than Honorable Conditions characterization of service. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 August 2016 / 3 years, 21 weeks b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 89 c. Highest Grade Achieved / MOS / Total Service: E-2 / 92G10, Culinary Specialist / 2 years, 5 months, 17 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 10 August 2017, for wrongfully and willfully discharging a firearm, to wit: a pistol, near the border of New Mexico under circumstance such as to endanger human life, being prejudicial to good order and discipline in the armed forces. The punishment consisted of reduction to E-1. El Paso Police Department Incident/Investigation Report, dated 27 April 2018, which makes reference to the applicant having been arrested for aggravated assault. General Office Memorandum of Reprimand, dated 16 August 2018, which indicates the applicant was reprimanded for committing aggravated assault with a loaded firearm. On 27 April 2018, the applicant got into an argument with her girlfriend. They started pushing and hitting each other; the applicant then pulled out a loaded firearm and shot her girlfriend in the stomach while a two-year child was asleep in an adjacent room. Negative counseling statements for acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: BH Patient Discharge Summary, noted that the applicant had been admitted to Psychiatric/Psychology from 27 July 2017 to 31 July 2017 for evaluation and management of Adjustment Disorder with depressed mood. Report of Mental Status Evaluation, dated 31 May 2018, which indicates the applicant was diagnosed with and Adjustment Disorder, Unspecified; and Insomnia, Unspecified. It was noted that the applicant met retention requirements of Chapter 3 AR 40-501 and did not warrant disposition through medical channels. Administrative Separation could continue for the applicant to receive a discharge from the US Army by Chapter 14-12c. The applicant was responsible for her behavior, could distinguish between right and wrong, and possessed sufficient mental capacity to understand and participated in any administrative or judicial proceeding. It was also noted that the applicant was confined in jail (El Paso County Detention Facility) 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and 384th Judicial District Court document. The court document submitted by the applicant from the state of Texas (El Paso) indicates the applicant's offense of AGG Assault Date/FAM/HOUSE W/WPN (Deadly Weapon Finding- Firearm) was deferred on 28 March 2019. 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 Service-member discharged from active military service within 15 years of the Service-member'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 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. (6) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (7) 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. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of "3." 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 requests an upgrade to honorable or general (under honorable conditions). The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant seeks relief contending that on 27 April 2018, she was arrested for Aggravated Assault with a deadly weapon. On 28 March 2019 she was not found guilty of the charge; she was discharged because of the arrest, she was not convicted of the crime. The applicant's contentions were noted; evidence in the record shows that on 27 April 2018, the applicant committed an assault upon D.M.D., by shooting her with a loaded firearm and thereby intentionally inflicting grievous bodily harm, to wit: gunshot wound to the abdomen. Evidence submitted by the applicant from the state of Texas (El Paso) indicates the applicant's offense of AGG Assault Date/FAM/HOUSE W/WPN (Deadly Weapon Finding-Firearm) was deferred on 28 March 2019. It should be noted 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 or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. 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. Applicant was diagnosed with Major Depressive Disorder and Adjustment Disorder while on active duty. Both of these conditions can be potentially mitigating BH conditions under Liberal Consideration. (2) Did the condition exist or experience occur during military service? Yes. Applicant was diagnosed with Major Depressive Disorder and Adjustment Disorder while on active duty. (3) Does the condition or experience actually excuse or mitigate the discharge? No. While applicant was diagnosed with Adjustment Disorder and MDD while on active duty, it is the opinion of the BH advisor that neither one of these BH conditions mitigates aggravated assault. Engaging in such behavior is not a feature of either Adjustment Disorder or MDD as neither one of these disorders is associated with violence. Such behavior, however, is consistent with the applicant's lifelong characterological traits of impulsivity and emotional dysregulation. (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 aggravated assault outweighed the applicant's MDD and AD diagnoses. b. The applicant contends she was found not guilty of the charge of aggravated assault. The available records determine that the assault occurred, and Board concluded that the finding of not guilty in a civilian court is not indicative of innocence. c. The Board denied the request upon finding the separation was both proper and equitable. 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. d. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service because, despite applying liberal consideration, MDD and AD do not mitigate aggravated 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 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. 10. 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 AR20190007344 1