1. Applicant’s Name: a. Application Date: 7 October 2019 b. Date Received: 2 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 and a narrative reason change. The applicant seeks relief contending, in effect, the applicant’s battle with post-traumatic stress disorder (PTSD) was recognized by the command but an egregious accusation of violently attacking the spouse who was committing self-hard by cutting did not match or meet the justified punishment awarded. The command failed to execute a valid and proper investigation after there were statements that did not match or meet the justified punishment awarded. A fair and balanced discharge was not presented in the case. b. Board Type and Decision: In a records review conducted on 23 September 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, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 14 August 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 21 October 2016 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 4 July 2106, the applicant unlawfully struck S.U. in the face and head with an open hand and closed fist. On or about 4 July 2016, the applicant unlawfully grabbed S.U. by the neck and mouth and hit face into the wall. On or about 4 July 2016, the applicant unlawfully drug S.U. by the hair. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: 5 July 2017 / The separation approving authority reviewed the findings and recommendations of the administration separation board pertaining to the applicant separation and directed the issuance of an Under Other Than Honorable Conditions discharge. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 February 2013 / 5 years b. Age at Enlistment / Education / GT Score: 24 / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-5 / 11B20, Infantryman / 12 years, 4 months, 1 day d. Prior Service / Characterizations: RA, 14 April 2005 – 4 February 2013 / HD e. Overseas Service / Combat Service: SWA / Iraq (1 October 2006 – 1 January 2008), (1 December 2008 – 18 November 2009), Afghanistan (4 November 2012 – 18 July 2013) f. Awards and Decorations: ACM-CS, ICM0CS-3, ARCOM-4, AAM-5, MUC-2, AGCM-3, NDSM, GWOTSM, HSM, NCOPDR, ASR, OSR-3, NATO Medal, CIB, Air Assault Badge, Driver and Mechanic Badge-Mechanic g. Performance Ratings: 1 February 2013 – 31 January 2014 / Fully Capable 1 February 2014 – 8 May 2014 / Fully Capable 9 May 2014 – 6 March 2015 / Fully Capable 7 March 2015 – 5 March 2016 / Most Qualified 6 March 2016 – 5 March 2017 / Not Qualified h. Disciplinary Action(s) / Evidentiary Record: GOMOR, dated 26 January 2017, reflects the applicant was reprimanded for reprehensible conduct of engaging in a physical altercation with the applicant’s spouse at the on-post residence. On 5 July 2016, the Military Police (MP) Incident Reports indicated the applicant engaged in a verbal argument with a spouse which turned physical. According to the applicant’s own statement to the MPs, the applicant hit the spouse with both open and closed fists in the face and head, grabbed the spouse’s neck, covered the spouse’s mouth, hit the spouse’s face into a wall, and drugged the spouse into the living room by the hair and arms. The MP report also indicated the applicant had physically assaulted the spouse on multiple occasions; however, the 5 July 2016, incident was the first time the MPs were called to the scene. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provides a VA Rating Decision, dated 12 December 2018, reflects the applicant was granted service connection for other specified trauma and stressor-related disorder with alcohol abuse disorder (claimed memory loss) with an evaluation of 50 percent effective 17 November 2017. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, DD Form 214, Personal Statement-2, Kurta Memorandum, GOMOR Allied documents, Applicant’s spouse’s Medical Record, DA Forms 3881-2, Sworn Statement-2, DA Form 4137, DA Form 2708, Investigative Data Sheet-4, Domestic Violence Supplemental Report of Investigation, DoD Person Search-4, ERB, VA Rating Decision, dated 12 December 2018, Spouse’s Letter (71 total pages) 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), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember’s date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) 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, states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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). 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’s Army Military Human Resource Record (AMHRR) of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable and a narrative reason change. The applicant requests the narrative reason for the discharge be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-22 with an under other than 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 listed in tables 2-2 or 2-2 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 the battle with PTSD was recognized by the command but an egregious accusation of violently attacking the spouse who was cutting did not match or meet the justified punishment awarded. The applicant’s AMHRR is void of a mental status evaluation or a diagnosis of PTSD. The applicant provides a VA Rating Decision, dated 12 December 2018, reflects the applicant was granted service connection for other specified trauma and stressor- related disorder with alcohol abuse disorder (claimed memory loss) with an evaluation of 50 percent effective 17 November 2017. The command failed to execute a valid and proper investigation after there were statements that did not match or meet the justified punishment awarded. A fair and balance discharge was not presented in the case. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 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 civilian provider documentation and found the following diagnoses which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: Neurosis, mild TBI in addition to the applicant’s assertion of PTSD. (2) Did the condition exist or experience occur during military service? Yes. Board's Medical Advisor found VA has established Neurosis, mild TBI are connected to military service, and applicant asserts PTSD in-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 has been diagnosed and of the natural history or sequelae of Neurosis. While the applicant has been service connected (10%) by the VA for TBI, this condition also does not mitigate the misconduct. While severe traumatic brain injury can, in some instances affect judgment and self-control via frontal lobe damage, review service connected (50%) by the VA for Neurosis, this condition does not mitigate his offense of physically assaulting the applicant’s spouse given that: 1) this condition does not affect one’s ability to understand the difference between right and wrong and act in accordance with the right; 2) Physical violence is not part of the applicant’s records. There is no mention in the military medical records of any TBI-associated dysfunction nor supporting evidence relating to the applicant’s claim of PTSD. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board concurred with 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 outweighed the basis for applicant’s separation. Neurosis, mild TBI, and self-asserted PTSD do not outweigh the offense of physically assaulting the applicant’s spouse since assault is not one of the medically recognized sequalae of these conditions. b. Response to Contention(s): (1) The applicant contends the battle with PTSD was recognized by the command but an egregious accusation of violently attacking the spouse who was cutting did not match or meet the justified punishment. The Board considered this contention and the applicant’s assertion of PTSD, however the Board determined that there is no 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. The diagnosed condition of Neurosis and mild TBI do not outweigh the assault either for the reasons listed in 9a, above. (2) The command failed to execute a valid and proper investigation after there were statements that did not match or meet the justified punishment awarded, and a fair and balanced discharge was not presented in the case. 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 what seems to be assault on the spouse on multiple occasions, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. There is no evidence of the command acting in an arbitrary or capricious manner, and the discharge is determined to be proper and equitable. c. The Board determined that the discharge is, at this time, proper and equitable, in light of 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 contentions 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 Neurosis and mild TBI diagnoses, and asserted PTSD did not excuse or mitigate physically assaulting the applicant’s spouse. 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 for the same reasons, 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: NO a. Issue a New DD-214 / Separation Order: No Change 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 AR20200007345 1