1. Applicant's Name: a. Application Date: 8 May 2019 b. Date Received: 20 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 and a narrative reason change. The applicant seeks relief contending, in effect, his discharge was unjust because he was not afforded the opportunity to continue rehabilitation. He had honorable service. There were other Soldiers with misconduct who were discharged honorably. He made a few mistakes which he corrected and moved on. He is asking for an upgrade in order to reenlist. In a records review conducted on 13 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. (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 / General, (Under Honorable Conditions) b. Date of Discharge: 26 May 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 5 April 2016 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant and his wife were involved in a verbal altercation on or about 6 January 2016 which turned physical when the applicant grabbed her by the shirt and scratched her chest. This was not the first time an altercation has become physical. Between December 2013 and January 2014, the applicant and his wife were involved in a verbal altercation which turned physical when the applicant choked and punched her and on or about July 2011, the applicant hit his wife, resulting in a black eye, and then threw her down the stairs of their home. Also, the applicant has been communicating threats to his wife, to wit: "Don't mess with me, I will take away our daughter and kill you," or words to that effect. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 6 April 2016 (5) Administrative Separation Board: The applicant conditionally waived an Administrative Separation Board on 6 April 2016, contingent upon receiving a characterization of service no less favorable then a General, (Under Honorable Conditions) discharge. (6) Separation Decision Date / Characterization: 3 May 2016 / General, (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 September 2014 / 2 years b. Age at Enlistment / Education / GT Score: 19 / Master's Degree / 98 c. Highest Grade Achieved / MOS / Total Service: E-5 / 91D, Power-Generator Equipment Operator / 8 years, 4 months, 14 days d. Prior Service / Characterizations: RA, 10 January 2008 - 3 September 2014 / HD e. Overseas Service / Combat Service: Germany, SWA / Iraq (13 November 2009 - 13 November 2010), Afghanistan (13 May 2014 - 22 November 2014) f. Awards and Decorations: ACM-CS, ARCOM-3, AAM-3, AGCM-2, NDSM, ICM-CS, NCOPDR, ASR, OSR-2, NATO Medal g. Performance Ratings: 1 March 2013 - 8 December 2013 / Fully Capable 9 December 2013 - 8 December 2014 / Fully Capable 9 December 2014 - 8 December 2015 / Marginal h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 1 August 2011, reflects the applicant was charged with Assault-Consummated by a Battery (Domestic) Law Enforcement Case Activity Summary, dated 7 January 2016, reflects, in part, a preliminary investigation revealed the applicant and his wife were involved in a verbal altercation which turned physical when he grabbed her by the shirt, scratching her chest. A Report of Mental Status Evaluation, dated 11 March 2016, reflects the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. The applicant was counseled on multiple occasions for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provides a letter from the Department of Veteran Affairs, Danville Community Based Outpatient Clinic, dated 29 August 2016, which reflects the applicant has a diagnosis of Major Depression, mild. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Personal Statement, Letter from the Department of Veteran Affairs, Danville Community Based Outpatient Clinic, dated 29 August 2016, 39 pages of documents from his Official Military Personnel File, Medical 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) 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) 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). 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: 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's AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable and narrative reason change. The applicant contends his discharge was unjust because he was not afforded the opportunity to continue rehabilitation. Army Regulation 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. The applicant also contends he had honorable service. 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. The applicant further contends there were other Soldiers with misconduct who were discharged honorably. The method in which another Soldier's case was handled is not relevant to the applicant's case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. The applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives and as approved by the separation authority. The narrative reason specified by AR 635-5-1 for a discharge under Chapter 14, paragraph 14-12c is "Misconduct (Serious Offense)," and the separation code is JKQ. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant states he desires to reenlist. Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. There is no basis upon which to grant a change to the reason or to the RE code. An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist. If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist. Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. 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 the applicant's DOD and VA health records. The applicant held in-service diagnoses of Adjustment Disorder and Depressive Disorder with FAP and ASAP engagement as the offender of IPV. The applicant is post-service connected for Major Depressive Disorder (MDD). (2) Did the condition exist or experience occur during military service? Yes. The applicant held in-service diagnoses of Adjustment Disorder and Depressive Disorder with FAP and ASAP engagement as the offender of IPV. While the applicant is post-service connected for Major Depressive Disorder (MDD), this is a progression of pre-enlistment and in-service symptoms rather than reflective of the condition in-service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. While liberal consideration was applied, MDD does not mitigate domestic violence. Specifically, depression does not impact an individual's ability to understand right from wrong or weigh consequences. Moreover, the attempt to avoid detection and then deny and/or minimize events when discussing incidents supports the applicant held intact cognitive processes void of impairment related to a psychiatric disorder. (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 of domestic violence outweighed the applicant's MDD diagnosis for the reasons listed in (3) above. b. Response to Contention(s): (1) Applicant contends the discharge was unjust based upon not given an opportunity to continue rehabilitation. The record indicates the applicant denied a need for services and the applicant was provided a clearance letter with a diagnosis of MDD. The Board found the separation was both proper and equitable considering the offense of domestic violence. (2) There were other Soldiers with misconduct who were discharged honorably and he made a few mistakes which he corrected to move on. The Honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct. The Board found the non-medically mitigated misconduct of domestic violence was not sufficiently meritorious to warrant an honorable discharge. (3) Applicant contends his service was honorable. The record confirms 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 IPV perpetration, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (4) Applicant asks for an upgrade in order to reenlist. There is no basis upon which to grant a change to the reason or to the RE code. If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist. Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. c. The Board determined the discharge is, at this time, proper and equitable, in light of the current evidence of record. 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 MDD did not mitigate the offense of Domestic Violence. 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 AR20190009342 1