1. Applicant's Name: a. Application Date: 7 June 2019 b. Date Received: 14 June 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 believes an unfortunate life changing incident happened in the military between him and his spouse. He hopes after the Board reviews his military records it will see why he believes his discharge should reflect he is an honorable man. He is not a confrontational person. His records will show he was the one who called 911 and he was the one who was stabbed in the back and hospitalized. He was confused when he was arrested after receiving treatment for his wounds. He plead guilty in order for his case to be closed and he could return to his unit. If he had known by pleading guilty it would end his military career, he would have remained incarcerated and plead his case in court. In reviewing his documents, it is clear he and his spouse had marital issues before the incident and they tried marriage and family counseling. His character references will show he was an honorable child and an adult. One incident should not label him differently. His résumé will show his career, after the incident, has been successful. He would regret looking back on his life to find he did nothing to have the Board consider reviewing his application and attachments. It was a one-time incident. He was always an outstanding Soldier. It has been 13 years since the altercation and there is no one more remorseful than him. He was able to achieve a great deal while in the military, but a shadow is casted over him and how great he could really be. He can no longer use his Montgomery GI Bill and he missed out on ideal employment opportunities. He does not need a fresh start because he has been doing well since his separation from his spouse. He found a way to help his bothers in arms by working as a contractor. He has avoided all negative situations. He would like the opportunity attain an education/degree and pursue other career opportunities. He grew up in an abusive home and told himself he would never do such a thing to a woman. He did everything to avoid conflict and tried to walk/run away and has the stab wounds to prove it. He was attacked and stabbed viciously and acted in self-defense. He was arrested after he called 911. The situation cost him his military career he loved and his benefits. He competed in countless Soldier of the month boards. Win or lose, between him and his battle buddies they would all grow to become better leaders. A portion of the applicant's statement is missing or was incomplete. In a records review conducted at on 29 October 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 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Civil Conviction) / AR 635- 200 / Chapter 14, Section II / JKB / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 8 December 2006 c. Separation Facts: (1) Date of Notification of Intent to Separate: 22 September 2006 (2) Basis for Separation: The applicant was notified of the following reason: He was convicted by civil court of simple battery and cruelty to children (3rd degree). (3) Recommended Characterization: General (Under Honorable Conditions). (4) Legal Consultation Date: 17 October 2006 (5) Administrative Separation Board: On 17 October 2006, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon receiving a characterization of service no less favorable than general (under honorable conditions) discharge. (6) Separation Decision Date / Characterization: 14 November 2006 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 15 July 2004 / 3 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 90 c. Highest Grade Achieved / MOS / Total Service: E-5 / 45B20, Small Arms/Artillery Repairer / 4 years, 5 months, 27 days d. Prior Service / Characterizations: RA, 12 June 2002 - 14 July 2004 / HD e. Overseas Service / Combat Service: SWA / Iraq (14 August 2003 - 10 April 2004) f. Awards and Decorations: AAM, AGCM, NDSM, GWOTEM, GWOTSM, ICM, ASR g. Performance Ratings: 1 April 2006 - 30 November 2006 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Headquarters, U.S. Army Medical Department Activity (USAMEDDAC), Fort Benning, GA, Family Advocacy Memorandum dated 14 February 2006, reflects the Case Review Committee (CRC) determined the allegations against the applicant of spouse abuse was substantiated for moderate spouse abuse and placed the applicant on a treatment plan. Duty Status Listing, reflects duty status as Confined by Civil Authorities, effective 8 April 2006 USAMEDDAC, Fort Benning, GA, Family Advocacy Memorandum, dated 11 April 2006, reflects the CRC determined the allegations against the applicant of spouse abuse was substantiated for moderate spouse abuse and placed the applicant on a treatment plan. USAMEDDAC, Fort Benning, GA, Family Advocacy Memorandum, dated 18 April 2006, reflects the recommended treatment plan. State Court of Muscogee County, Georgia Court Documents show the applicant was placed on probation for 24 months (majority of pen and ink entries are illegible). It shows he had the right to appeal his judgment and sentence within 30 days after the sentence was adjudged. One Personnel Action form, reflects the applicant's duty status changed from "Confinement" to "Present for Duty," effective 20 April 2006. Numerous Developmental Counseling Forms, for various acts of misconduct regarding multiple incidents of spousal abuse, child endangerment, and for failing to attend family advocacy treatment plan counseling. The Medical History form, dated 1 August 2006, reflects the applicant indicated he suffered from low back pain due to years in service at Fort Bragg, NC and he was treated and hospitalized for his hand. His Medical Examination form, dated 1 August 2006, reflects he was cleared for separation, but other portions of the examination are illegible. i. Lost Time / Mode of Return: 11 days: (Confinement, 8 April 2006 to 19 April 2006) / NIF This period is not annotated on the DD Form 214, block 29. j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; DD Form 214; U.S. Army Honorable Discharge Certificate; 12 character references/letters; 4 certificates of training; final divorce decree; résumé; and SLED (South Carolina Law Enforcement Division) results. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, he found a new way to help his brothers in arms by working as a contractor. He has been doing well ever since his separation from his spouse and he has avoided negative situations for 13 years. 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) 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. (5) 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. (6) Section II, paragraph 14-5 prescribes a Soldier is subject to action per this section when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present: 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. A Soldier subject to discharge under this regulation will be considered and process for discharge even though he/she had filed an appeal or has stated his/her intent to do so; however, execution of the approved discharge will be withheld until the Soldier indicated in writing, that he/she does not intend to appeal the conviction; time in which an appeal may be made has expires; or the Soldier's current term of service, as adjusted, expires. 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 "JKB" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, section II, misconduct (civil conviction). 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-3 applies to a 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. 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. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the incident between him and his spouse while he was in the military was unfortunate and a one-time incident. The applicant contends the event which led to the discharge from the Army was an isolated incident. 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 good service, including a combat tour. The Board considered the service accomplishments and the quality of service. The applicant contends an upgrade would allow educational benefits through the GI Bill. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. The applicant contends his military record, character statements, and résumé would reflect he is an honorable man and had a successful career after the incident. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The third party statements provided with the application speak highly of the applicant. They all recognize the applicant's good conduct during his service as well as after leaving the Army. 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? No. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records. While the applicant's record reflects IPV, the applicant was the offender in all cases. Records are void of a behavioral health diagnosis for consideration. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): (1) The applicant contends the incident between him and his spouse while he was in the military was unfortunate and a one-time incident. The official records indicate multiple IPV accounts including FAP involvement with the applicant as the offender. Therefore, the Board found that the applicant's discharge for civil conviction was proper and equitable. (2) The applicant contends the event which led to the discharge from the Army was an isolated incident. The applicant's separation file included counseling statements for multiple incidents of spousal abuse, child endangerment, and for failing to attend family advocacy treatment plan counseling. Further, the civilian conviction was for simple battery and cruelty to children. Therefore, the Board found that the applicant's discharge for civil conviction was proper and equitable. (3) The applicant contends good service, including a combat tour. The ADRB determined the applicant's discharge was appropriate because the quality of the applicant's 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. By the simple battery and cruelty to children in addition to IPV as the perpetrator, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (4) The applicant contends an upgrade would allow educational benefits through the GI Bill. Eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. (5) The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. (6) The applicant contends his military record, character statements, and résumé would reflect he is an honorable man and had a successful career after the incident. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in- service misconduct was an aberration and not indicative of the member's overall character. 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, there were no mitigating factors, including BH conditions, for the Board to consider in relation to the offenses of simple battery and cruelty to children in addition to IPV as the perpetrator. 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 AR20190008557 1