1. Applicant’s Name: a. Application Date: 14 November 2019 b. Date Received: 27 December 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to honorable; a narrative reason change and reinstatement of rank and pay grade. The applicant seeks relief contending, in effect, since the reason for the discharge misconduct (serious offense), has been proven in invalid in court. An upgrade is warranted due to honorable service and was only one isolated incident because of post-traumatic stress disorder (PTSD). b. Board Type and Decision: In a records review conducted on 24 August 2022, 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, Chapter 14-12c / JKQ / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 12 June 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 1 February 2019 (2) Basis for Separation: The applicant was informed of the following reasons: On 23 September 2018, the applicant committed an aggravated assault against the spouse by pointing a loaded firearm at the spouse’s head; attempted to murder the spouse by firing two rounds from a firearm, and wrongfully and willfully discharged a firearm in the home under circumstance such as to endanger the applicant’s neighbors. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: On 5 February 2019, the applicant waived legal counsel. (5) Administrative Separation Board: On 5 February 2019, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 28 May 2019 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 October 2016 / 3 years b. Age at Enlistment / Education / GT Score: 29 / one-year college / 106 c. Highest Grade Achieved / MOS / Total Service: E-6 / 15P34, Aviation Operations Specialist / 13 years, 6 months d. Prior Service / Characterizations: RA, 7 July 2005 – 5 July 2010 / HD RA, 6 July 2010 – 10 October 2016 / HD e. Overseas Service / Combat Service: Germany, SWA / Iraq (1 July 2007 – 6 September 2008); Afghanistan (15 December 2009 – 3 August 2010; 16 July 2012 – 15 April 2013) f. Awards and Decorations: ARCOM-3, AAM-6, MUC-2, VUA, AGCM-4, NDSM, GWOTSM, ACM-2CS, ICM-CS, ASR, OSR-3, NATOMDL, NCOPDR-2 g. Performance Ratings: 1 February 2013 – 25 December 2015 / Fully Capable 26 December 2015 – 31 October 2016 / Met Standard 1 November 2016 – 1 November 2017 / Met Standard h. Disciplinary Action(s) / Evidentiary Record: Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY)” to “Confined by Civil Authorities (CCA),” effective date: 25 September 2018. CID Report of Investigation, undated, reflects an investigation established probable cause to believe the applicant committed the offense of attempted murder in the second-degree, domestic violence and two counts of reckless endangerment (off post). Yelm Police Department Reporting Officer Narrative, dated 23 September 2018, reflects the applicant was apprehended for: attempted murder in the second-degree, domestic violence and two counts of reckless endangerment (off post). The applicant provided Order of Conditions of Release, dated 18 September 2019, reflect the applicant was found not guilty of all charges at trial. The applicant was released without bail on personal recognizance. Memorandum for Record, dated 21 February 2019, reflects the applicant was incarcerated for a serious offense, and was unable to receive a mental evaluation or medical examination. i. Lost Time / Mode of Return: 260 days (CCA, 25 September 2018 – 12 June 2019) / Apprehended by Civil Authorities j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a Forensic Psychological Report, dated 30 April 2019, reflecting the applicant was diagnosed with post- traumatic stress disorder (PSTD), chronic; Major depressive disorder, recurrent, severe, without psychotic features; and Alcohol use disorder, moderate. Additionally, recommended the applicant receive services from a program specializing in combat PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Order on Conditions of Release; Forensic Psychological Report; 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), 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 prescribes 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) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army’s best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. 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-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 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 requests an upgrade to honorable. The applicant’s record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Misconduct (Serious Offense),” and the separation code is “JKQ.” Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214 and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends since the reason for the discharge was not proven in court the applicant was found not guilty, an upgrade is warranted. The applicant provided Order of Conditions of Release, dated 18 September 2019, which reflects the applicant was found not guilty of all charges at trial. The applicant was released without bail on personal recognizance. The Army Military Human Resource Record (AMHRR) does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends suffering from PTSD before the discharge, which affected the applicant’s behavioral health. The applicant provided a Forensic Psychological Report indicating the applicant was diagnosed with PSTD, chronic; Major depressive disorder, recurrent, severe, without psychotic features; and Alcohol use disorder, moderate. Additionally, recommended the applicant receive services from a program specializing in combat PTSD. The Army Military Human Resource Record (AMHRR) reflects the applicant was incarcerated for a serious offense, so the applicant was unable to receive a mental evaluation or medical examination. The AMHRR is void of a Mental Status Evaluation. The applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service. The applicant contends the reinstatement of rank and pay grade should be granted. The applicant’s request does not fall within this board’s purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans’ Service Organization. 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 the following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: civilian diagnoses of PTSD; Major Depressive DO (MDD). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant's civilian psychologist has determined that his diagnoses of PTSD and MDD occurred during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that there are no mitigating BH conditions. While the applicant’s defense-appointed psychologist has opined that the applicant’s diagnosis of PTSD and MDD resulted in the applicant’s attempt to murder his wife with a weapon, the Agency BH Advisor disagrees. While the applicant has been diagnosed post- service with PTSD related to combat and MDD, these conditions do not mitigate the act of trying to kill one’s wife and endangering one’s neighbors given that neither one of these conditions affect’s one’s ability to distinguish right from wrong and act in accordance with the right. Specifically, the attempted assault upon the applicant’s spouse was the result of a progression and escalation of an argument occurring in the context of chronic marital difficulties dating back to at least 2015. The SSG’s choice of victim was not accidental; the assault did not relate to his trauma in such a way to suggest a re-enactment and the applicant was able to coherently speak of events surrounding the assault. Accordingly, while Liberal Consideration was applied, the misconduct is not mitigated. Regarding the applicant’s report of incurring a possible TBI while deployed, there is no documentation of this event in the military medical records. Additionally, there is no indication that his reported mild TBI affected his performance or cognitive processes in any way as evidenced by the following performance ratings: 1 February 2013 – 25 December 2015 / Fully Capable/ 26 December 2015 – 31 October 2016 / Met Standard/ 1 November 2016 – 1 November 2017 / Met Standard. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board considered the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant’s conditions of PTSD and MDD outweighed the basis for applicant’s separation – attempted to murder and wrongfully and willfully discharged a firearm. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The SPD codes identify reasons for, and types of, separation from active duty, and administratively linked to the reason for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. In this case, the Board determined the discharge was proper and equitable, and the SPD code and narrative reason are consistent with the procedural and substantive requirements of the regulation. (2) The applicant contends since the reason for the discharge was not proven in court the applicant was found not guilty, an upgrade is warranted. The Board considered this contention and determined the applicant did not provide supporting documentation to provide merit to the claim. Ultimately, the Board decided that due to the severity of the offenses and found no evidence of the Command acting arbitrarily or capriciously. In this case, the Board determined the discharge was proper and equitable. (3) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board considered this contention and the applicant’s assertion of an isolated incident, however the Board determined that there is not sufficient evidence, and the applicant did not provide supporting documentation to provide merit to the claim. Ultimately, the Board determined that the assertion alone did not outweigh the basis of separation due to the severity of the offenses. (4) The applicant contends suffering from PTSD before the discharge, which affected the applicant’s behavioral health. The Board determined this contention was valid after review of the applicant's DOD and VA health records. It revealed the applicant was diagnosed in service with PTSD and MDD. However, the BH conditions do not mitigate the basis for separation and the Board decided the discharge was proper and equitable. (5) The applicant contends good service, including a combat tour. 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 to the Army and was prejudicial to good order and discipline. By committing attempted murder and wrongfully and willfully discharged a firearm, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (6) The applicant contends the reinstatement of rank and pay grade should be granted. The Board determined that 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 determined the discharge is, at this time, proper and equitable, considering 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 BH diagnoses of PTSD and MDD did not excuse or mitigate the offense of attempted murder and wrongfully and willfully discharged a firearm. 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, 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 AR20200000337 1