1. Applicant’s Name: a. Application Date: 3 July 2020 b. Date Received: 10 July 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 applicant served in the Army for 6 years, was awarded a Purple Heart and received a traumatic brain injury (TBI) with two concussions. The applicant is requesting a general (under honorable conditions) discharge in order to start going to the Veterans Affairs (VA) to receive medical treatment. The applicant requests that the Board reviews the applicant’s Army Military Human Resources Record (AMHRR) in the interactive Personnel Electronic Records Management System (iPERMS) to make the determination. The applicant also wants the Board to know that the applicant is sorry for what was done and the actions that were committed is not the applicant’s character and is not something normally done. b. Board Type and Decision: In a records review conducted on 23 June 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 (Civil Conviction) / AR 635-200, Chapter 14, Sec II / JKB / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 12 February 2020 c. Separation Facts: (1) Date of Notification of Intent to Separate: 6 January 2020 (2) Basis for Separation: The applicant was informed of the following reasons: On 22 April 2019, the applicant was found guilty of felony menacing with a real/simulated weapon and felony criminal mischief by El Paso County. The applicant was sentenced for these offenses on 17 June 2019. As it pertains to characterization of the applicant’s service: On 29 December 2018, the applicant held a knife to wife's throat after kicking down the door of the apartment that the applicant’s wife and friend had barricaded themselves in. On 18 January 2018, the applicant forged a civilian judge's signature on the applicant’s divorce paperwork. On 14 February 2019, the applicant strangled the applicant’s wife. On 14 February 2019, the applicant resisted arrest requiring police officers to use a taser. On 14 February 2019, the applicant violated a civilian protective order. On 8 March 2019, the applicant violated a civilian protective order. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 7 January 2020 (5) Administrative Separation Board: On 7 January 2020, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 30 January 2020 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 May 2017 / 4 years b. Age at Enlistment / Education / GT Score: 22 / Associate Degree / 135 c. Highest Grade Achieved / MOS / Total Service: E-4 / 42A10, Human Resources / 6 years, 15 days d. Prior Service / Characterizations: RA, 28 January 2014 - 12 May 2017 / HD RA, 13 May 2017 - 12 February 2020 / UOTH e. Overseas Service / Combat Service: Jordan, Latvia, SWA / Kuwait (10 February - 19 May 2015) f. Awards and Decorations: ARCOM-5, AAM-9, AGCM, ARCAM, NDSM, GWOTEM, GWOTSM, NCOPDR, ASR, MOVSM, PH, CAB, ACM, JSCOM, NATOMDL, OSR-3 g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 9 April 2018, for wrongfully adjusting the applicant’s own records on or about 14 December 2017 in the Electronic Military Personnel Office (EMILPO) to reflect a passing Army physical fitness test (APFT) in December 2017. In addition, made an official statement, “[Applicant] did not adjust [applicant] APFT in EMILPO,” which was false in that the EMILPO audit showed that the applicant did, and was then known by the applicant to be so false. The applicant appealed on 9 April 2018 and it was denied on 16 April 2019. The punishment consisted of a reduction to E-2; forfeiture of $918.00 pay per month for 2 months (suspended); and extra duty and restriction for 45 days. Five Developmental Counseling Forms, for various acts of misconduct. Court document, People of the State of Colorado versus the applicant - El Paso County, reflects the applicant was charged with felony menacing-real/simulated weapon with an offense date of 14 February 2019, the applicant pled and was found guilty on 22 April 2019. The following charges were dismissed: assault 2-strangulation, violation protective order-criminal, resisting arrest, and obstructing a peace officer. Medical Assessment, dated 21 June 2019, reflects the applicant intends to seek Department of VA disability for a concussion, headaches, and right knee. The examining medical physician noted in the comments section: Follow-up with VA as directed. Report of Medical Examination, dated 21 June 2019, the examining medical physician noted in the comments section: Anxiety/adjustment disorder. Report of Mental Status Evaluation (MSE), dated 2 July 2019, reflects the applicant was 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 post-traumatic stress disorder (PTSD) and TBI with negative results. The conditions were either not present or did not meet Army Regulation 40-501 criteria for a medical evaluation board. The command was advised to consider the influence of these conditions. i. Lost Time / Mode of Return: CCA, 15 February - 17 June 2019 / Released from Confinement. This period is not annotated on the DD Form 214, block 29. j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: MSE as described in previous paragraph 4h. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 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) Section II, Paragraph 14-5, prescribes conditions which subject a Soldier to discharge and reduction in grade. A Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present. This includes similar adjudication in juvenile proceedings: 1) A punitive discharge authorized for the same or a closely related offense under the MCM 2002, as amended; 2) The sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. Adjudication in juvenile proceedings includes adjudication as a juvenile delinquent, wayward minor, or youthful offender; Initiation of separation action is not mandatory. Although the conditions established in a (1) or (2), above, are present, the immediate commander must also consider whether the specific circumstances of the offense warrant separation. If the immediate commander initiates separation action, the case will be processed through the chain of command to the separation authority for appropriate action. A Soldier convicted by a civil court or adjudged a juvenile offender by a civil court will be reduced or considered for reduction. 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 “JKB” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, section II, misconduct (civil conviction). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to general (under honorable conditions). The applicant’s AMHRR, the issues, and documents submitted with the application were carefully reviewed. The AMHRR shows prior to the time of the applicant’s discharge, the applicant was charged with felony menacing-real/simulated weapon with an offense date of 14 February 2019, the applicant pled and was found guilty on 22 April 2019. The applicant was sentenced to 3 years’ supervised probation, to complete domestic violence evaluation and comply with all recommendations, shall complete mental health evaluation and comply with all recommendations, shall complete random urinalysis/ breath alcohol, shall obtain employment, shall comply with conditions of Personal Protection Order 19C558, shall pay fines/costs/surcharges/restitution, shall comply with rules of interstate compact if the applicant elected to transfer probation out of state; remaining counts were dismissed; the applicant was to report to probation within 24 hours of release; restitution was reserved for 91 days. AR 635-200, in pertinent part, stipulates a Soldier may be separated when initially convicted by civil authorities, or when action is taken tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. The applicant contends, in effect, the applicant served in the Army for 6 years, was awarded a Purple Heart and received a TBI with two concussions. The applicant is requesting a general (under honorable conditions) discharge in order to start going to the VA to receive medical treatment. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention of a TBI. The applicant’s AMHRR does not reflect record of a TBI. Additionally, the applicant’s service accomplishments and the quality of service will bbe considered by the board according to the DODI 1332.28. Analyst notes the applicant marked the PTSD and TBI boxes on the DD Form 293. The Military Review Boards representative emailed and attempted to call (telephone number was not good) the applicant at the email and phone number in the application between 16 and 24 May 2023 requesting medical documentation to support a behavioral health condition but received no response from the applicant. 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: The applicant was diagnosed with Unspecified Personality Disorder with Antisocial and Borderline traits and Adjustment Disorder in-service. The applicant holds a post-service connection for TBI. (2) Did the condition exist or experience occur during military service? Yes. The applicant was diagnosed with Unspecified Personality Disorder with Antisocial and Borderline traits and Adjustment Disorder in-service, and is service-connected for TBI. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that IPV, forging a judge’s signature, resisting arrest, and violating protection orders are not a progression or sequela of an Adjustment Disorder. Rather, it better aligns with the Unspecified Personality Disorder. However, although a Personality Disorder provides context, it is not a mitigating condition as it does not render an individual unable to make conscious choices understanding right from wrong and likely consequences. Regarding the TBI, in-service documentation addressed the head injury report and found the applicant did not have a TBI or any post-event symptoms. Moreover, the VA’s initial determination was 10% for TBI which is a rating for subjective report of symptoms for which evaluations cannot find objective support. Accordingly, the applicant did not have an impairing cognitive condition, e.g. TBI, at the time of the misconduct. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the available evidence did not support a conclusion that the applicant’s Unspecified Personality Disorder with Antisocial and Borderline traits, Adjustment Disorder, and TBI outweighed the basis for applicant’s separation – Civil conviction for felony menacing with a real/simulated weapon and felony criminal mischief – for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends good service, to include serving in the Army for 6 years and being awarded a Purple Heart. 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 the civil conviction for assault with a real/simulated weapon and criminal mischief, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (2) The applicant contends a TBI which affected judgment during service, thereby mitigating the applicant’s misconduct. The Board considered this contention and determined there is insufficient evidence to support the contention that the applicant was suffering from a TBI at the time of discharge. Ultimately, the Board determined the applicant’s contention did not mitigate or outweigh the nature and severity of the applicant’s misconduct. 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 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, the available evidence did not support a conclusion that the applicant’s Unspecified Personality Disorder with Antisocial and Borderline traits, Adjustment Disorder, and TBI outweighed the basis for applicant’s separation – Civil conviction for felony menacing with a real/simulated weapon and felony criminal mischief. The Board further considered the applicant’s contentions of impropriety and inequity and determined there as insufficient evidence of any arbitrary or capricious action taken by Command, and insufficient mitigating equity factors such that would warrant an upgrade of the discharge. 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. Therefore, the applicant’s UOTHC was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to HD. (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 AR20200009644 1