1. Applicant's Name: a. Application Date: 14 October 2019 b. Date Received: 19 October 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, his discharge was inequitable because it was based on an isolated incident; his charges were not thoroughly investigated; false charges were made by his command team; false charges were made with little to no proof; the victim in his case admitted she lied under oath; and his punishment was extremely harsh. The applicant also contends his exceptional behavior prior to the incident was never mentioned. The applicant also states he was 48 hours from his expiration of term of service and his first sergeant pushed forward all efforts to execute his discharge. In a telephonic personal appearance hearing conducted on 9 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 10 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: 24 August 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 12 July 2016 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant unlawfully pushed Mrs. H's face against the wall and unlawfully strangled her with his hands. (3) Recommended Characterization: General, under honorable conditions (4) Legal Consultation Date: 13 July 2016 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 10 August 2016 / General, under honorable conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 April 2013 / 3 years, 19 weeks b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 97 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M, Motor Transport Operator / 3 years, 4 months, 9 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Kuwait, 28 October 2015 - 29 January 2016 f. Awards and Decorations: ARCOM, AAM-6, NDSM, GWOTSM, GWOTEM, ASR, MOVSM, Driver and Mechanic Badge-Driver Wheeled Vehicle Clasp(s) g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Memorandum For Distribution, Subject; Law Enforcement Report, dated 4 August 2015, reflects an investigation established probable cause to believe the applicant committed the offenses of Aggravated Assault when he strangled his wife; Simple Assault when he slammed her head against a wall; Attempted kidnapping when he barricaded their residence door to prevent her from leaving; Attempted Obstruction of Justice when he tried to prevent her from leaving or calling the police; and failure to Obey an Order or Regulation (Unregistered Firearm) when he failed to register his firearm on post. FG Article 15, dated 11 February 2016, reflects that on or about 8 June 2015, the applicant unlawfully pushed Mrs. H's face against the wall; unlawfully strangle her with his hands; and wrongfully not register his privately owned vehicle. The punishment consisted of reduction to private/E-2; forfeiture of $867.00, suspended, to be automatically remitted if not vacated before 11 April 2016; and extra duty for 45 days. A Report of Mental Status Evaluation, dated 17 May 2016, reflects the applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong, and met medical retention requirements. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Personal Statement, DD Form 214, DD Form 215, ERB-2, Separation Package-42 pages 6. POST SERVICE ACCOMPLISHMENTS: The applicant states he currently inspects towers and make repairs to keep climbers safe in the tower industry and works with the FAA. 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. 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. 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 his discharge was inequitable because it was based on an isolated incident. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant also contends his charges were not thoroughly investigated; false charges were made by his command team; false charges were made with little to no proof; the victim in his case admitted she lied under oath; and his punishment was extremely harsh. The applicant also states he was 48 hours from his expiration of term of service and his punishment was extremely harsh. 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 his exceptional behavior prior to the incident was never mentioned. 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 service record indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 25, AR 635-200, PARA 14-12C (2). The discharge packet confirms the separation authority approved the discharge by reason of Misconduct (Serious Offense). Soldiers discharged as a result of a Misconduct (Serious Offense), will be processed under the provisions AR 635-200, Paragraph 14-12c. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): N/A b. The applicant presented the following additional contention(s): Applicant provided oral argument and statements in support of the contentions provided in written submissions and in support of previously submitted documentary evidence. c. Counsel / Witness(es) / Observer(s): N/A 10. 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 ADRB's Medical Advisor, a voting member of the Board, reviewed the applicant's DOD and VA health records. The applicant held an in-service diagnosis of Adjustment Disorder. Although Intimate Partner Violence is documented, the applicant is the offender. (2) Did the condition exist or experience occur during military service? Yes. The applicant held an in-service diagnosis of Adjustment Disorder. Although Intimate Partner Violence is documented, the applicant is the offender. (3) Does the condition or experience actually excuse or mitigate the discharge? No. While liberal consideration was applied, an Adjustment Disorder does not mitigate domestic violence. Adjustment disorder is associated with feelings of sadness or hopelessness, minor anxiety, difficulty functioning in normal activities, or avoidant behavior. In the case of the applicant, the acts were conscious and purposeful with attempted concealment and minimization; there is no indication of a psychiatric illness impairing decision making or inability to determine right from wrong. Moreover, the applicant could hold a coherent discussion void of amnesia or suggestion of a dissociative episode. Accordingly, there is no medical mitigation. (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 IPV outweighed the applicant's Adjustment Disorder. b. Response to Contentions: (1) The applicant contends his discharge was inequitable because it was based on an isolated incident. Although a single incident, the seriousness of the IPV was noted by the Board and factored into its determination. (2) The applicant states his exceptional behavior prior to the incident was never mentioned. 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 the Board factored in the seriousness of the IPV in its decision. (3) The applicant also states he was 48 hours from his expiration of term of service and his punishment was extremely harsh. While discharge occurred at this time, the discharge process took the command 1.5 years to complete. It was not initiated that close to ETS. (4) The applicant also contends his charges were not thoroughly investigated; false charges were made by his command team; false charges were made with little to no proof; the victim in his case admitted she lied under oath; and his punishment was extremely harsh. Whether or not the victim recanted, medical records showed indication of IPV. c. The Board denied the request upon finding the separation was both proper and equitable. The 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. 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 BH diagnoses which mitigated the misconduct and the IPV charge was serious with conscious acts and attempts to conceal the charges, 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. 11. 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 AR20190013783 1