1. Applicant’s Name: a. Application Date: 24 December 2019 b. Date Received: 5 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 general (under honorable conditions). The applicant seeks relief contending, in effect, the civilian arrest was result of the military training by defending and saving the lives of self and friend. The applicant cannot be responsible for missing the unit training assemblies because of the incarceration. Being incarcerated was a reason beyond the applicant’s control therefore the absences should be excused. The unit commander had recommended a General (Under Honorable Conditions) discharge. Any Soldier would have done the same in the situation if the Soldier embraced warrior ethos. The conviction does not reflect negatively on the US Army. Although being convicted and separated, the applicant continued to support veteran organizations and raised awareness for the sacrifices made by members of the Armed Forces in defense of the nation’s freedom. Because of the conviction, the applicant has become more of an asset to the US Army. The applicant should be given the opportunity to finish the enlistment contract or reenlist after the incarceration to prevent others from getting involved in similar circumstances. b. Board Type and Decision: In a records review conducted on 25 January 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: Unsatisfactory Participation / AR 135- 178, Chapter 12 / NA / NA / Under Other Than Honorable Conditions b. Date of Discharge: 8 October 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 22 April 2012 (2) Basis for Separation: The applicant was informed of the following reasons: For conviction by a civil court, the applicant was arrested on 5 October 2009 and convicted on 30 November 2011. Commander’s Report, undated, reflects the applicant was found guilty of 1 count of first-degree manslaughter, 2 counts of 2nd degree assault, 2 counts of 1st-degree attempted assault, and criminal possession of a weapon. The applicant was sentenced to 18 years. (3) Recommended Characterization: General (Under Honorable Conditions) (The battalion commander recommended Under Other Than Honorable Conditions discharge.) (4) Legal Consultation Date: On 22 April 2012, the applicant waived legal counsel. (5) Administrative Separation Board: On 22 April 2012, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 4 June 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 November 2007 / 8-year MSO USAR (6 years with a Reserve Component) b. Age at Enlistment / Education / GT Score: 17 / GED / 109 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92W10, Water Treatment Specialist / 4 hours, 10 months, 26 days d. Prior Service / Characterizations: USAR, 13 November 2007 – 2 January 2008 / NA IADT, 3 January 2008 – 3 July 2008 / HD (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Commander’s Report as described at previous paragraph 3c. Serious Incident Report (SIR), dated 4 April 2012, with a Certificate of Disposition Indictment, dated 28 February 2012, reflect the applicant was involved in a stabbing incident and as of 28 February 2012, the applicant was convicted on 22 December 2012, of 1 count of Manslaughter 1st degree, 2 counts of assault 2nd degree, 2 counts attempted assault 1st degree, and criminal possession of a weapon in the 4th degree. Affidavit of Service by Mail, reflects the Notification of Separation, dated 15 March 2012, was mailed to the applicant via certified mail on 4 April 2012. Developmental Counseling Form for being arrested, convicted, and sentenced 18 years for the crime of a manslaughter. Letter of Instructions – Unexcused Absence, dated 16 March 2012, reflects the applicant was absent from a scheduled unit training assembly (UTA) or a multiple unit training assembly (MUTA) for the following periods: 9 March 2012 (MUTA 1 and 2) 10 March 2012 (MUTA 1 and 2) 11 March 2012 (MUTA 1 and 2) i. Lost Time / Mode of Return: NIF j. Diagnosed PTSD / TBI / Behavioral Health: The applicant does not provide evidence of PTSD and it is not in the Army Military Human Resource Record (AMHRR), but in a personal essay, the applicant relates to suffering from PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and listed attachments. 6. POST SERVICE ACCOMPLISHMENTS: The applicant’s evidence reflects the achievements in a college; having written unpublished essays; participating in several veterans’ oriented programs; and publishing veterans newsletter. 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 135-178 prescribes the policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the United States (ARNGUS) and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. (1) Paragraph 2-9a prescribes an honorable characterization 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. (2) Paragraph 2-9b, prescribes, if a Soldier’s service has been honest and faithful, it is appropriate to characterize that service as general (under honorable conditions). Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the Soldier’s conduct or performance of duty outweigh positive aspects of the Soldier’s military record. (3) Paragraph 2-9c, prescribes the service may be characterized as under other than honorable conditions only when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security reasons, and under other circumstances. (4) Chapter 3-23 (Section IV), states, if separation proceedings under this chapter have been initiated against a Soldier confined by civil authorities, the case may be processed in the absence of the respondent. (5) Chapter 12 provides in pertinent part, individuals can be separated for being an unsatisfactory participant. Soldier is subject to discharge for unsatisfactory participation when it is determined that the Soldier is unqualified for further military service because: The Soldier is an unsatisfactory participant as prescribed by AR 135–91, chapter 4; Attempts to have the Soldier respond or comply with orders or correspondence. (6) Paragraph 12-3 prescribes the service of Soldiers separated under this chapter will be characterized as honorable or under honorable conditions as determined under chapter 2, section III, unless an uncharacterized description of service is warranted under paragraph 2–11. 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 Army Military Human Resource Record (AMHRR) of service, the issues, and documents submitted with the application were carefully reviewed. The applicant’s AMHRR contains a properly constituted discharge order: Orders 12-276-00023, dated 2 October 2012. The orders indicate the applicant was discharged under the provisions of AR 135-178, with a characterization of service of under other than honorable conditions. The applicant contends being incarcerated was a reason beyond the applicant’s control therefore the unit training assembly absences should be excused. The AMHRR reflects the applicant’s separation was based on the conviction by a civil count. The applicant contends the unit commander had recommended a General (Under Honorable Conditions) discharge. The notification of separation informed the applicant, the intermediate commander and the separation authority were not bound by the unit commander’s recommendation. The applicant requests the opportunity to finish the enlistment contract or reenlist after the incarceration to prevent others from getting involved in similar circumstances. At the time of discharge, the applicant received an under other than honorable conditions characterization of service. Army Regulation 601-210, chapter 4, stipulates an under other than honorable conditions discharge constitutes a non-waivable disqualification; thus, the applicant is no longer eligible for reenlistment. The applicant’s evidence reflect having made achievements in college and continuing to support veterans’ organizations and raising awareness for the sacrifices made by members of the Armed Forces. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. The applicant’s evidence indicate suffering from PTSD. The applicant’s AMHRR contains no documentation of PTSD diagnosis. The applicant did not submit any evidence of a behavioral health examination or diagnosis of the PTSD by a competent medical authority. 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. 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: PTSD (by assertion only). (2) Did the condition exist or experience occur during military service? No. The Board's Medical Advisor found no evidence of a potentially mitigating MH condition during applicant's time of 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 the applicant, by implication, has asserted the presence of PTSD associated with the circumstances of his discharge. Under liberal consideration guidelines, his assertion alone is worthy of consideration by the Board. However, it is the opinion of the Agency BH advisor that he has not provided compelling evidence via medical records of the presence of any potentially mitigating conditions to include PTSD. Furthermore, even a presumptive diagnosis of PTSD would not mitigate the offense(s) leading to his incarceration and subsequent discharge for unsatisfactory participation in USAR; PTSD does not impact one’s ability to differentiate between right and wrong and adhere to the right. (4) Does the condition or experience outweigh the discharge? No. Based on liberally considering all the evidence before the Board, the ADRB determined that the condition or experience did not outweigh the basis of separation. b. Response to Contention(s): (1) The applicant contends being incarcerated was a reason beyond the applicant’s control therefore the unit training assembly absences should be excused. 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 the assertion alone did not outweigh the basis of separation due to the severity of the offenses. In this case, the Board determined the discharge was proper and equitable. (2) The applicant contends the unit commander had recommended a General (Under Honorable Conditions) discharge. 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 the assertion alone did not outweigh the basis of separation due to the severity of the offenses. In this case, the Board determined the discharge was proper and equitable. (3) The applicant requests the opportunity to finish the enlistment contract or reenlist after the incarceration. The Board determined that recruiters can best advise a former service member as to the Army’s needs at the time and are required to process waivers of reentry, if appropriate. (4) The applicant’s evidence reflects having made achievements in college and continuing to support veterans’ organizations and raising awareness for the sacrifices made by members of the Armed Forces. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, no law or regulation provides an unfavorable discharge that must be upgraded based solely on the passage of time or good conduct in civilian life after leaving the service. The Board may consider the outstanding post-service conduct and the applicant’s performance and conduct during the service under review during proceedings. The Board reviews each discharge on a case-by-case basis to determine if post- service accomplishments help demonstrate that previous in-service misconduct was an aberration and not indicative of the member’s overall character. In this case, the Board decided the discharge was proper and equitable. (5) The applicant’s evidence indicate suffering from PTSD. The Board considered this contention and the applicant’s assertion of PTSD, however the Board determined that there is no sufficient evidence of said diagnoses in official or medical records, and the applicant did not provide supporting documentation by a qualified medical professional 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. 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 asserted BH diagnoses of PTSD did not excuse or mitigate the offenses of Unsatisfactory Participation, manslaughter, assault, and criminal possession of a 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, 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 AR20200004830 1