1. Applicant's Name: a. Application Date: 28 August 2019 b. Date Received: 3 September 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. The applicant seeks relief contending, in effect, the board did not consider the entire period of service when reaching their decision. The applicant had honorable service including three combat tours and several awards, including the Soldier's Medal. The applicant and the commander failed to mesh and it led to many disagreements. The applicant contends the commander had undue influence to shape the events leading to the summary court-martial. In a records review conducted on 4 May 2022, and by a 5-0 vote, the Board denied the request upon finding the accepted basis for separation - domestic violence and IPV - 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-4 / Under Other Than Honorable Conditions b. Date of Discharge: 25 May 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The applicant was informed of the following reasons: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: 4 May 2016 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 September 2012 / 4 years b. Age at Enlistment / Education / GT Score: 23 / Test-Based Equivalent Certificate / 105 c. Highest Grade Achieved / MOS / Total Service: E-5 / 12B10, Combat Engineer / 10 years, 9 months, 22 days d. Prior Service / Characterizations: RA, 29 July 2005 - 10 September 2012 / HD e. Overseas Service / Combat Service: SWA / Iraq (31 October 2006 - 31 October 2007, Afghanistan (19 January 2010 - 13 January 2011) and (31 January 2012 - 31 January 2013) f. Awards and Decorations: ACM-CS-2, ICM-CS-2, Soldier's Medal, ARCOM-4, AGCM- 2, NDSM, GWOTSM, NCOPDR, ASR, OSR-3, NATO MDL, Driver and Mechanic Badge-Driver- Wheeled Vehicle(s) Clasp g. Performance Ratings: 1 September 2009 - 31 August 2010 / Fully Capable 1 September 2010 - 31 August 2011 / Marginal 1 September 2011 - 31 August 2012 / Fully Capable 1 September 202 - 1 June 2013 / Fully Capable 1 June 2013 - 17 March 2014 / Fully Capable 18 March 2014 - 17 March 2015 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: GOMOR, dated 12 February 2016, reflects an investigation determined the applicant physically assaulted the applicant's spouse, specifically repeatedly punching the spouse in the face, choking, pushing to the ground, kicking in the ribs - causing said spouse to hit head on a night stand. Further, the applicant took a picture of the spouse on the ground and texted to the spouse's mother. Said offenses occurred on 16 August 2014, with numerous delays in the criminal trial explaining the time lapse between offense and GOMOR. i. Lost Time / Mode of Return: Unknown / 5 days (3 December 2015 - 7 December 2015) j. Diagnosed PTSD / TBI / Behavioral Health: An Informal Physical Evaluation Board Proceedings, dated 25 January 2016, found the applicant physically unfit due to post-traumatic stress disorder (PTSD) and recommended a rating of 50-percent and placement on TDRL with a reexamination during 10/2016. On 26 September 2016, the Physical Disability Agency administratively terminated the Integrated Disability Evaluation case for the applicant case was disenrolled due to misconduct. All authorizations and the PEB Proceedings were voided. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149, DD Form 214 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. SUMMARY 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. The applicant's service AMHRR is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. However, the applicant's record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty). The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, paragraph 14-12c, by reason of Misconduct (Serious Offense), with a characterization of service of Under Other Than Honorable Conditions. The applicant contends the board did not consider the entire period of service when reaching their decision. The applicant had honorable service including three combat tours and several awards, including the Soldier's Medal. The applicant's service accomplishments and the quality of the service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant contends the commander had undue influence to shape the events leading to the summary court-martial. If the applicant desires a personal appearance hearing, it is his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration because they are not available in the official record. 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, applicant's statement, and/or civilian provider documentation and found diagnoses of Adjustment Disorder, Depression, and PTSD. The applicant was pending trial as the offender of two incidents of IPV. (2) Did the condition exist or experience occur during military service? Yes. Applicnat was diagnosed in-service with Adjustment Disorder, Depression, and PTSD. The applicant was pending trial as the offender of two incidents of IPV. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor opined, after applying liberal consideration of all the evidence, that the applicant's Adjustment Disorder, Depression, and PTSD were not a mitigating factor for the applicant's domestic violence and IPV offenses - the accepted basis for separation. Furthermore, until the basis for separation is clarified, medical mitigation cannot be decided. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that any of the applicant's medical conditions of Adjustment Disorder, Depression, and PTSD completely outweighed the accepted bases for applicant's separation - domestic violence and IPV. b. Response to Contention(s): (1) The applicant contends the board did not consider the entire period of service when reaching their decision. The Board 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. The accepted bases for separation being domestic violence and IPV, serious offenses indicate the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation which was not outweighed by the totality of the applicant's service. (2) The applicant contends the commander had undue influence to shape the events leading to the summary court-martial. The Board considered this contention non-persuasive during its deliberations. The applicant did not receive a Summary Court-Martial. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. c. The Board determined that 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 of all the evidence before the Board, the applicant's Adjustment Disorder, Depression, and PTSD did not excuse or mitigate the offenses of domestic violence and IPV, which the Board used as the accepted bases of separation. 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 AR20190011938 1