1. Applicant's Name: a. Application Date: 28 June 2019 b. Date Received: 1 July 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. The applicant requests an upgrade to general (under honorable conditions). The applicant seeks relief contending, in effect, prior to the incident he tried to get mental/behavioral health help on Fort Huachuca. The applicant seeks relief contending, in effect, if he was giving the opportunity to speak on his behalf during the Administrative Board, his outcome could have been different. In a records review conducted on 23 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 (Civil Conviction) / AR 635- 200 / Chapter 14, SEC II / JKB / RE -3 / Under Other Than Honorable Conditions b. Date of Discharge: 29 May 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 24 August 2018 (2) Basis for Separation: The applicant was informed of the following reasons: Conviction by Civil Court. On 25 May 2018, in the Superior Court of the State of Arizona, the applicant pleaded guilty to committing aggravated assault by using a deadly weapon of dangerous instrument in violation of 13 A.R.S. 1204(a)(2); 1203 (a)(2); 105; 701; 704; and 801. The applicant was sentenced to 11 years of confinement in the Arizona Department of Corrections. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 24 January 2019 (5) Administrative Separation Board: On 24 January 2019, the applicant elected to request a personal appearance before an administrative separation board. On 8 March 2019, the applicant was notified to appear before an administrative separation board and advised of rights. On 16 April 2019, the administrative separation board convened. The applicant did not appear (confined in Arizona) but was represented by his counsel. The board recommended the applicant's discharge with characterization of service of under other than honorable conditions. On 8 May 2019, the separation authority approved the findings and recommendations of the administrative separation board. (6) Separation Decision Date / Characterization: 8 May 2019 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 October 2016 / 4 years b. Age at Enlistment / Education / GT Score: 24 / HS Graduate / 96 c. Highest Grade Achieved / MOS / Total Service: E-3 / 68R10, Veterinary Food Inspector / 1 year, 2 months, 24 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Superior Court documentation showing on or about 28 December 2017, the applicant committed the following offenses: Three counts of domestic violence/aggravated assault by using a deadly weapon or dangerous instrument to wit he fired during an altercation, and domestic violence/kidnapping by knowingly restraining another person with intent to place victim in reasonable apprehension of imminent physical injury to the victim to wit at gunpoint to get in the applicant's vehicle. i. Lost Time / Mode of Return: 1 year, 5 months, 1 day (Civil Confinement, 28 December 2017 - 29 May 2019 / NA j. Diagnosed PTSD / TBI / Behavioral Health: Mental Status Evaluation, dated 15 May 2018, reflects the applicant was mentally cleared for any administrative actions deemed appropriate by the command. It also states, the applicant reported symptoms associated with MTBI, PTSD, and depression, however, those symptoms are attributed to his incarceration rather than existing prior to his arrest. The increase in symptoms are expected given his current circumstances. The applicant was diagnosed with: imprisonment or other incarceration. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, DD Form 214, Enlisted Record Brief, Legal Brief, case separation packet, court documents, medical records, four third party letters, three certificates of achievements. 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. 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. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKB" 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 general (under honorable conditions). The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends prior to the incident that led to his discharge, he tried to get mental/behavioral health help. The AMHRR shows the applicant underwent a mental status evaluation on 15 May 2018, and was diagnosed with PTSD that the evaluating psychologist attributed to applicant's imprisonment or other incarceration at the time of the evaluation, and not attributable to any experience during the applicant's military service. The applicant contends prior to the incident that led to his discharge, he served honorably, received awards, passed his physical fitness test, and showed great potential to go far in his career. The Board considered the service accomplishments and the quality of service. The applicant contends, if he was given the opportunity to speak on his behalf during the Administrative Separation Board, his outcome could have been different. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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 reported an experience of MST while on active duty which, under certain circumstances, is a potentially mitigating experience. (2) Did the condition exist or experience occur during military service? YES. Applicant reported an experience of MST while on active duty. (3) Does the condition or experience actually excuse or mitigate the discharge? NO. Applicant's experience of MST while on active duty does not excuse or mitigate his misconduct, in the opinion of the Board's Medical Advisor. An experience of MST can potentially cause someone to engage in avoidant behaviors (such as AWOL), self-medicating behaviors (such as drinking alcohol or using drugs to dampen the pain of the experience) or acting out behaviors (such as disobeying orders, being oppositional, engaging in minor misconduct). An experience of MST, in the Board's Medical Advisor opinion, would be highly unlikely to result in aggravated assault with a deadly weapon. It would also be highly unlikely to result in the affected individual holding a person at gunpoint to enter a vehicle. Engaging in such behavior indicates conscious choice, planning and intent to harm and is most likley due to an individual's underlying character organization rather than any major mental illness or traumatizing experience such as MST. (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 experience of MST in this case does not outweigh the applicant's misconduct that was the basis for his discharge. b. The applicant contends: (1) The applicant contends prior to the incident that led to his discharge, he tried to get mental/behavioral health help. The Board considered this contention. At the time of the applicant's discharge there were ample resources in the Army for Soldiers to deal with behavioral health issues, including Chaplains, Military Family Life Counselors, resources at Army Community Services, and with the Army's health care system, in addition to the chain of command and peers. The Board concluded that the applicant had not exhausted his opportunities to obtain mental/behavioral health help while in service based on all evidence presented, including the supporting evidence in the AMHRR. (2) The applicant contends prior to the incident that led to his discharge, he served honorably, received awards, passed his physical fitness test, and showed great potential to go far in his career. The Board liberally considered the service accomplishments and the quality of service as part of its determination. (3) The applicant contends, if he was given the opportunity to speak on his behalf during the Administrative Separation Board, his outcome could have been different. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command, and that the rights of the applicant were protected per regulation. Additionally, the applicant was represented by counsel at the administrative separation board. The applicant's inability to testify on his own behalf was a result of his own misconduct that resulted in the civilian conviction and incarceration. 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 MST did not mitigate the charges of aggravated assault 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 for the same reason, and the reason the applicant was discharged was both proper and equitable. (3) Because the characterization and reason were not changed, the SPD/RE codes will not change, as the current codes are 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 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 AR20190010981 3