1. Applicant’s Name: a. Application Date: 6 September 2019 b. Date Received: 16 March 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 general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, as a Combat Veteran from the Afghanistan war with a Combat Infantry Badge, the applicant was having mental health problems from the war experiences. The adjustment upon returning home was difficult and started having marital problems. The applicant was accused of assaulting the spouse by hitting the spouse, which never happened. They have been married since 23 August 2014, and currently have two children. Making no excuses, the applicant is ashamed and asks for forgiveness and admits making a mistake which cannot be taken back. The applicant would like a fresh start and a chance to move forward with life. The applicant has been diagnosed with PTSD and meets with a therapist twice a month. The applicant has since been doing great with adapting as a civilian and has not had any episodes. The applicant has volunteered at the children’s school almost every day and has been working on a degree in computer science. With the support of an amazing family, the applicant made changes. The applicant has served the country proudly. If not for the one mistake, the applicant would still be serving the country proudly. b. Board Type and Decision: In a records review conducted on 1 March 2023, 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 / General (Under Honorable Conditions) b. Date of Discharge: 6 November 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 29 September 2015 (2) Basis for Separation: The applicant was informed of the following reasons: On 6 June 2015, the applicant unlawfully assaulted C. M. N. by pushing into a wall and applying pressure to the neck with hands. On 6 June 2013, the applicant, through negligence discharged a service rifle in the billets of 2nd Battalion, 87th Infantry Regiment. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 1 October 2015 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 20 October 2015 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 September 2012 / 3 years, 17 weeks b. Age at Enlistment / Education / GT Score: 20 / High School Graduate / 86 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 1 month, 26 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (3 November 2013 – 23 July 2014) f. Awards and Decorations: ACM-CS, ARCOM, MUC, NDSM, GWOTSM, ASR, NATOMDL, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: A Developmental Counseling Form for negligent discharge of a weapon. Military Police Report, dated 7 July 2015, reflects the applicant was apprehended for assault consummated by a battery. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 21 September 2015, reflects the applicant was psychiatrically cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. The applicant had been screened for PTSD and mTBI with negative results. The MSE remarked the applicant had chronic coping problems often manifested by suicidal thinking and low self-esteem and was endorsing an increase in depressive symptoms best characterized an adjustment disorder. The MSE provided an “AXIS I” diagnosis of “Adjustment disorder with depressed mood.” VA Licensed Clinical Social Worker, dated 29 January 2020, indicates the applicant was being treated for PTSD since April 2018. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; DD Form 214; VA Summary of Benefits letter; Licensed Clinical Social Worker letter; and six third-party letters. 6. POST SERVICE ACCOMPLISHMENTS: The applicant volunteers at the children’s school almost every day and has been working on the degree in computer science. 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) 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 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. The applicant’s Army Military Human Resource Record (AMHRR), the issues and documents submitted with the application were carefully reviewed. The applicant contends, in effect, as a combat Veteran from the Afghanistan war with a Combat Infantry Badge, the applicant was having mental health problems and found adjusting upon returning home difficult and started having marital problems, and has since been diagnosed with PTSD by VA. The applicant’s AMHRR contains documentation which supports a diagnosis of an in-service adjustment disorder with depressed mood. The record shows the applicant underwent a mental status evaluation (MSE) on 21 September 2015, which indicates the applicant was mentally responsible and was able to recognize right from wrong. The MSE was considered by the separation authority. The applicant also provided medical documents indicating a diagnosis and treatment for PTSD. The applicant contends, in effect, doing great since the discharge and volunteers at the children’s school almost every day and has been working on a degree in computer science. 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 contends having served the country proudly as a combat veteran with a combat infantry badge. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends if not for the one mistake, the applicant would still be serving the country proudly. Army Regulation 635-200, paragraph 3-5, 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 third-party statements provided with the application speak highly of the applicant’s character and performance. 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 and experiences: Adjustment Disorder, Major Depressive Disorder (MDD) harassment and bullying while in- service, Bipolar Disorder (although removed in treatment), Personality Disorder, Anxiety Disorder, and PTSD. . (2) Did the condition exist or experience occur during military service? Yes. The applicant was diagnosed in-service with an Adjustment Disorder and MDD; reported harassment, bullying, and hazing by command in service; and is service-connected for Bipolar Disorder and Unspecified Anxiety Disorder. While the applicant references mental health difficulties in-service, he does not assert it influenced the misconduct as he denied it occurred. (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 is an absence of factors to consider flashbacks or trauma-related substance use influencing the assault. However, irrespective of these factors, assault is not a progression or sequela of the diagnoses listed above therefore there is no medical mitigation. (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 Adjustment Disorder, MDD, harassment and bullying while in-service, Bipolar Disorder (although removed in treatment), Personality Disorder, Anxiety Disorder, or PTSD outweighed the basis for applicant’s separation – repeated perpetration of Intimate Partner Violence (IPV) – for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends as a combat Veteran from the Afghanistan war with a Combat Infantry Badge, the applicant was having mental health problems and found adjusting upon returning home difficult and started having marital problems, and has since been diagnosed with PTSD by VA. The Board considered this contention but determined that the Army has many legitimate avenues available to service members requesting assistance with family issues, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant’s repeated IPV where the spouse reports fearing for the spouse’s life on more than one occasion, is not an acceptable response, thus the applicant was properly and equitably discharged. In addition, the ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant’s time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member’s discharge characterization. In this case, the Board considered the contention of PTSD or other BH symptoms and determined that none of the diagnoses or asserted symptoms excused, mitigated, or outweighed the misconduct due to the serious, violent nature and the repeated offenses of IPV where the applicant denies abuse occurred but there were noticeable marks on the spouse and the spouse filed a protective order against the applicant, in contradiction of the applicant’s claim of the false abuse allegations. (2) The applicant contends doing great since the discharge and volunteers at the children’s school almost every day and has been working on a degree in computer science. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge must be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings. 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. In this case, the Board considered this contention and determined that the applicant’s post-service conduct was insufficient to outweigh the serious nature of the applicant’s misconduct. (3) The applicant contends having served the country proudly as a combat veteran with a combat infantry badge. 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 being a confirmed repeated offender of IPV and negligently discharging a weapon in the barracks, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (4) The applicant contends if not for the one mistake, the applicant would still be serving the country proudly. The Board considered this contention non-persuasive during its deliberations due to there being more than one instance of IPV recorded contradicting the contention. (5) The third-party statements provided with the application speak highly of the applicant’s character and performance. The Board took the third-party statements into consideration during deliberations but determined the gravity of the misconduct outweighed these statements. 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 of all the evidence before the Board, the applicant’s Adjustment Disorder, MDD, harassment and bullying while in-service, Bipolar Disorder (although removed in treatment), Personality Disorder, Anxiety Disorder, or PTSD did not excuse or mitigate the offenses of IPV perpetration or negligent discharge of a weapon in the barracks, and there were no other potentially-mitigating factors for the Board’s consideration due to the serious and repeated nature of the misconduct. 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. ? 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 AR20200005733 1