1. Applicant’s Name: a. Application Date: 24 January 2020 b. Date Received: 10 February 2020 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 conditions, a change to narrative reason and rank restored. The applicant seeks relief contending, in effect, the applicant requests an upgrade along with a narrative reason change and rank restoration. The applicant states the mistreatment received in how the discharge happened was unjust. The applicant states there have never been any problems in or out of the military until 04/2018, and always being the go-to Soldier and hard worker. The applicant states the discharge does not reflect who the applicant is, but it does prevent having a second chance. The applicant states it was one mistake on the civilian side where the applicant was punished after taking full responsibility, and then punished for the same offense on the military side making the applicant feel stained for life. The applicant states being severely injured due to an air assault class and had a MED board process going at the time of the incident in which the chain of command cancelled after contacting the primary care doctor, because of this, the applicant cannot receive treatment. The applicant has put going to school on hold due to the absence of benefits. The applicant states feeling as if the applicant’s life is on hold. b. Board Type and Decision: In a records review conducted on 18 November 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-3 / Under Other Than Honorable Conditions b. Date of Discharge: 23 May 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 30 August 2018 (2) Basis for Separation: The applicant was informed of the following reasons: for committing aggravated assault with a deadly weapon on or about 16 April 2018. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 4 September 2018 (5) Administrative Separation Board: The applicant was notified to appear before an administrative separation board to be held on 1 February 2019 and advised of the applicant’s rights. On 1 February 2019, the administrative separation board convened, and the applicant appeared with counsel. The board recommended the applicant’s discharge with a characterization of service of under other than honorable conditions. On 8 March 2019, the separation authority approved the findings and recommendations of the administrative separation board and directed the issuance of an under other than honorable conditions discharge. (6) Separation Decision Date / Characterization: 8 March 2019 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 November 2015 / 6 years b. Age at Enlistment / Education / GT Score: 24 / HS Graduate / 124 c. Highest Grade Achieved / MOS / Total Service: E-4 / 15R10, AH-64 Attack Helicopter Repairer / 3 years, 6 months, 15 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR, COA g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Incident / Investigation Report, dated 16 April 2018, shows the applicant was arrested for assault with a deadly weapon on 16 April 2018. One Developmental Counseling Form, notifying the applicant that the applicant was being recommended for a General Officer Memorandum of Reprimand for aggravated assault with a deadly weapon. Memorandum, dated 11 July 2018, show the applicant received a General Officer Memorandum of Reprimand for aggravated assault with a deadly weapon. District Court of El Paso County, Texas, Court Document, dated 19 July 2018, indicates that charge against applicant for committing offense of aggregated assault with deadly weapon was deferred and he was placed on community supervision for three years. Memorandum, dated 28 November 2018, shows the applicant was disapproved for the award of the Army Good Conduct Medal for the period of 9 November 2015 to 8 November 2018 due to SFPA. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 17 May 2018, reflects the applicant was placed on the High-Risk List with Mendoza Behavioral Health due to an inpatient admission but was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; DD Form 214; Physical Profile Record; copies of Military Personnel Records; Congressional Correspondence; Psychiatric care Letter; one Third-Party Letter. 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. 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. 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, a narrative reason change, and the rank restored. The applicant’s Army Military Human Resource Record (AMHRR) of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the narrative reason for the discharge should be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 35-200 with a under other than honorable conditions discharge. The narrative reason specified by Army Regulation 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 635-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under tis regulation. The applicant contends good service. The Board will consider the applicant service accomplishments and the quality of service according to the DODI 1332.28. 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 being severely injured in an air assault class and the discharge should have been for medical reasons. Army Regulation 635-200, in pertinent part, stipulates commanders will not separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The applicant contends an upgrade of the discharge would allow veterans benefits to include the Post 9/11 GI Bill. Eligibility for veteran’s benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant requests that the rank be restored. The applicant’s requested change to have the rank restored does not fall within the purview of this Board. 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 that the applicant has the following potentially-mitigating diagnoses/experiences: Adjustment Disorder, Insomnia, and Pain Disorder Related to psychological Factors. (2) Did the condition exist or experience occur during military service? Yes. The Board’s Medical Advisor found that the applicant’s Adjustment Disorder, Insomnia, and Pain Disorder Related to psychological Factors existed 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 was no nexus between the applicant’s Insomnia and Pain Disorder and the misconduct, and that an Adjustment Disorder is a low level, temporary difficulty adjusting or coping with psychosocial stressors that do not impair cognitive abilities; the diagnosis would not impact ability to know right from wrong and understand the consequences, and thus there is no medical mitigation for the aggravated assault with deadly weapon. (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, and determined that the available evidence did not support a conclusion that the applicant’s Adjustment Disorder, Insomnia, and Pain Disorder Related to psychological Factors outweighed the basis for applicant’s separation – committing aggravated assault with a deadly weapon – for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge should be changed. The Board considered this contention and voted not to change the applicant’s narrative reason for discharge or accompanying SPD code after determining that due to the nature and severity of the applicant’s basis for separation the misconduct is not outweighed, and the discharge was proper and equitable. (2) The applicant contends good service. The Board considered the totality of the applicant’s service record but 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. By committing aggravated assault with a deadly weapon, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (3) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board’s considered this contention and found it unpersuasive based on Army Regulation 635-200 which stipulates, in pertinent part, circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization and based on the nature and severity of committing aggravated assault with a deadly weapon. (4) The applicant contends he was injured in an air assault class and the discharge should have been for medical reasons. The Board considered this contention and noted that the Board’s Medical Advisor indicated the applicant was not undergoing an MEB process at the time of discharge. Further, the Board recognized Army Regulation 635-200 which stipulates, in pertinent part, that commanders will not separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct, and ultimate determined there was no abuse of the separation authority’s discretion and the discharge was proper and equitable due to the severity of the misconduct. (5) The applicant contends an upgrade of the discharge would allow veterans benefits to include the Post 9/11 GI Bill. The Board considered this contention and determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. (6) The applicant requests that the rank be restored. The applicant’s requested change to have the rank restored does not fall within the purview of this Board. 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 c. The Board determined that 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, the applicant’s Adjustment Disorder, Insomnia, and Pain Disorder Related to psychological Factors did not mitigate the basis for applicant’s separation – committing aggravated assault with a deadly weapon. 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 and the applicant’s BH conditions are service limiting. 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 AR20200003758 1