1. Applicant's Name: a. Application Date: 17 April 2019 b. Date Received: 17 May 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 and restoration of his rank. The applicant seeks relief contending, in effect, he was unjustly discharged on false charges for which he received a not guilty verdict at trial. He was stripped of all rank and kicked out of the Army like a criminal. He gave over 11 years to the Army along with 3 deployments. In a records review conducted on 27 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: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 24 August 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 14 December 2017 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant physically assaulted his wife and pointed a deadly weapon at his wife, a means likely to produce death or grievous bodily harm. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 14 December 2017 (5) Administrative Separation Board: On 13 April 2018, the board found the allegation that the applicant assaulted his wife was supported by the preponderance of the evidence. The Board recommended the applicant be separated with an under other than honorable conditions characterization of service. (6) Separation Decision Date / Characterization: 16 August 2018 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 March 2014 / 6 years b. Age at Enlistment / Education / GT Score: 21 / 3 years HS / 108 c. Highest Grade Achieved / MOS / Total Service: E-6 / 29E, Electronic Warfare Specialist / 11 years, 7 months, 16 days d. Prior Service / Characterizations: RA, 9 January 2007 - 12 March 2014 / HD e. Overseas Service / Combat Service: SWA / Service in Iraq, 8 December 2008 - 12 December 2009, 11 February 2011 - 14 November 2011, and 4 August 2015 - 25 February 2016 f. Awards and Decorations: ARCOM-3, AAM-4, MUC, AGCM-3, NDSM, GWOTSM, GWOTEM, ICM-CS-2, NCOPDR-2, ASR, OSR-3, Driver and Mechanic Badge-Mechanic, IRCM-CS, Driver and Mechanic Badge-Driver-Wheeled Vehicle(s) Clasp g. Performance Ratings: 1 June 2013 - 31 May 2014 / Among The Best 1 June 2014 - 31 May 2015 / Among The Best 1 June 2015 - 31 May 2016 / Qualified 1 June 2016 - 31 May 2017 / Highly Qualified h. Disciplinary Action(s) / Evidentiary Record: A Military Police Desk Blotter, dated 16 September 2017, reflects the applicant was arrested for aggravated assault. General Officer Memorandum Of Reprimand, dated 26 October 2017, for assaulting his wife and threatening her with a deadly weapon. i. Lost Time / Mode of Return: None / None j. Diagnosed PTSD / TBI / Behavioral Health: A Report of Mental Status Evaluation, dated 25 October 2017, reflects the applicant could understand and participate in administrative proceedings and appreciate the difference between right and wrong. The applicant did not meet retention standards and warranted disposition through medical channels. The applicant medical record contained evidence of a documented boardable condition within the past 90 days. The applicant was diagnosed with major depressive disorder. A memorandum, dated 25 July 2018, issued by the Chief, Department of Behavioral Health Installation Director of Psychological Health, Fort Bliss, TX, stated the MEB determined the applicant's BH diagnoses unspecified depressive disorder and PTSD were severe enough that the applicant did not meet retention standards. However, he did not have a BH condition that interfered with is ability to proceed with the administrative process. The applicant was responsible for his behavior and could distinguish right from wrong. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, court documents 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. 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. 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 record of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable and restoration of his rank. 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. By the misconduct (serious offense), the applicant diminished the quality of his service below that meriting an honorable discharge at the time of separation. The applicant contends he was unjustly discharged on false charges for which he received a not guilty verdict at trial. He was stripped of all rank and kicked out of the Army like a criminal. However, 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 applicant states he gave over 11 years to the Army along with 3 deployments. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. 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. The Board's Medical Advisor, a voting member, reviewed DoD and VA medical records and found the applicant has been diagnosed with PTSD, MDD and Cyclothymic Disorder, all of which are potentially mitigating conditions. (2) Did the condition exist or experience occur during military service? Yes. Applicant's diagnoses of PTSD and MDD were made both in-service and post-service (by the VA). Applicant's diagnosis of PTSD has been service-connected by the VA, which indicates it began during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. Review of the medical records indicates that the applicant's diagnosis of PTSD appears to be his primary BH condition. While violent behavior can occasionally be seen with PTSD, it is usually of short duration, impulsive and, if related to an underlying traumatic event, usually is not remembered. In the applicant's case, however, his incidents of domestic violence were multiple in number, reflected a pattern, the choice of his victim was not accidental, his behavior did not relate to a traumatic event and did not suggest a re-enactment and he was able to coherently speak of the events prior to, during and after the domestic violence incidents, all factors which are inconsistent with having PTSD. The applicant has also been diagnosed with Major Depressive Disorder and Cyclothymic Disorder. Violence seen in these affective conditions is usually directed towards oneself in the form of suicidal behaviors. Violence directed towards others is uncommon but, when it does occur, it occurs randomly, sporadically and is short-lived. The domestic violence exhibited by the applicant is inconsistent with the type of violence seen in these conditions as evidenced by the following: the applicant's victim of choice was not random, the domestic abuse occurred in a repetitive pattern over time and his explanation of the behavior reflected motivation and rationalization. (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 physical assault of spouse with a deadly weapon outweighed the applicant's diagnoses of PTSD, and MDD, for the reasons listed in (3) above. The egregiousness of the applicant's misconduct is not outweighed by his BH diagnoses. b. Response to Contention(s): (1) The applicant contends he was unjustly discharged on false charges for which he received a not guilty verdict at trial. He was stripped of all rank and kicked out of the Army like a criminal. However, 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 applicant did not provide any independent corroborating evidence to support this contention. Medical records indicate Adjustment Disorder/with anxiety/with depressed mod/with disturbance of emotions/with mixed disturbance of emotions and conduct/unspecified; Adult physical abuse; Adult psychological abuse; Child Abuse; MDD, moderate; Marital Problem; PTSD, chronic - these are not minor offenses and are verified in the medical records without mitigating circumstances for the Board's consideration. (2) The applicant states he gave over 11 years to the Army along with 3 deployments. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments, but those actions in and of themselves are not mitigating for physical assault with a deadly weapon of a spouse. (3) The applicant requests restoration of rank. The applicant's requested change to the DD Form 214 does not fall within the purview of the ADRB. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using a DD Form 149 regarding this matter. A DD Form 149 may be obtained from a Veterans' Service Organization. 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, the applicant's PTSD and MDD diagnoses did not mitigate the offenses of physical assault of the applicant's spouse with a deadly weapon, and there were no other mitigating circumstances submitted by the applicant for the Board's consideration. 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, as 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 AR20190008680 1