1. Applicant’s Name: a. Application Date: 20 August 2020 b. Date Received: 25 August 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: (1) The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. (2) The applicant seeks relief contending the majority of their service was honorable, aside from the major incident resulting in their being discharged for misconduct. b. Board Type and Decision: In a records review conducted on 29 September 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct, (Serious Offense) / Army Regulation 635-200, paragraph 14-12c / JKQ / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 19 August 2020 c. Separation Facts: (1) Date of Notification of Intent to Separate: 9 April 2020 (2) Basis for Separation: on or about 4 February 2019, assaulted their spouse by strangulation (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 1 May 2020 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 20 May 2020 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 15 August 2016 / 6 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 120 c. Highest Grade Achieved / MOS / Total Service: Specialist/E-4 / 68W10, Health Care Specialist / 4 years, 5 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: AGCM, NDSM, KDSM, ASR g. Performance Ratings: None h. Official Military Record: Disciplinary Action(s) / Evidentiary Record: (1) A DA Form 268 (Report to Suspend Favorable Personnel Action (Flag)), dated 10 September 2019, reflects a Flag was initiated against the applicant as the result of a Law Enforcement Investigation. (2) A Memorandum, U.S. Army Criminal Investigation Command, subject: Law Enforcement Report, dated 15 October 2019, shows the applicant as the subject with the offenses of Domestic Violence (UCMJ-Article 128b). and Aggravated Assault by Strangulation (UCMJ-Article 128). The Report Summary states: (a) A clinical social worker from the post Family Advocacy Program (FAP) notified [CID] the applicant's spouse disclosed during a counseling session she was assaulted by the applicant while at their off-post residence. The applicant invoked their rights not to say anything or answer any questions. The applicant’s spouse reported being strangled during a physical domestic altercation and provided injury photographs depicting finger shaped bruising on both sides of their neck. (b) On 27 September 2019, the Command Legal Advisor, Office of the Staff Judge Advocate, Fort Stewart, GA, opined there is probable cause to believe the applicant committed the offense of Aggravated Assault by Strangulation and Domestic Violence. No additional investigative efforts are required. There is sufficient evidence to provide to command for consideration of action. (c) Although not available for review, 15 exhibits were attached, to include, in pertinent part: * Agents Investigation Report (AIR), 19 March 2019 * Victim Declination to Participate in Criminal Investigation, 19 March 2019 * Copy of Hinesville Police Report, 15 March 2019 * Attempted Strangulation/Suffocation Assessment, 9 August 2019 * Photographic packet (spouse injuries) (3) A DD Form 2697 (Report of Medical Assessment), dated 9 March 2020, reflects the applicant marked “Yes” to the following questions: * item 11 (Since your last medical assessment/physical examination, have you had any illness or injuries that caused you to miss duty for longer than 3 days?), and commented “Hospitalization - BH [Behavioral Health]” * item 12 (Since your last medical assessment/physical examination, have you been seen by or been treated by a health care provider, admitted to a hospital, or had surgery?), and commented “Previous” * Item 13 (Have you suffered from any injury or illness while on active duty for which you did not seek medical care?), and commented “Concussions, falls” (4) DA Form 3822 (Report of Mental Status Evaluation), dated 11 March 2020, reflects the applicant has no duty limitations due to behavioral health reasons and meets the retention requirements. The applicant was screened for PTSD, depression, Traumatic Brain Injury (TBI), substance misuse and sexual trauma; and no significant history was noted. * Section IV (Diagnoses) shows the Behavior Health Diagnoses are deferred * Section V (Follow-Up Recommendations) “Follow-up as already scheduled” was marked; however, there was no follow-up information provided * Section VI (Recommendations and Comments for Commander) reflects the applicant has no safety precautions are indicated and can understand and participate in administrative proceedings and appreciate the difference between right and wrong (5) A DD Form 2807-1 (Report of Medical History), dated 25 March 2020, shows in Item 30a (Examiners Summary and Elaboration on All Pertinent Data/Comments): * “HCP #17A: Seen patient for SI with fu outpatient. Has been following up regularly with BH since 2015.” * “HCP# 17E: Per ER/BH notes psychiatric history of cluster B Personality disorder and adjustment disorder, who was admitted for suicidal ideation in the context of alcohol intoxication. SM is cleared for chapter by BH on 11 March 2020” (6) A Memorandum, Headquarters and Headquarters Company, 2nd Battalion, 7th Infantry Regiment, subject: Separation under the Provisions of Army Regulation 635-200, Paragraph 14-12c, (Commission of Serious Offense) [Applicant], 9 April 2020, the applicant’s immediate commander notified the applicant of their intent to separate them under the provisions of Army Regulation 635-200, Chapter 14-12c, Commission of a Serious Offense with a recommended characterization of service of general (under honorable conditions) for assault of [spouse] by strangulation with their hand, on or about 4 February 2019. On the same day the applicant acknowledged the basis for the separation and of the right available to them and submitted a statement on their behalf to be retained on active duty, stating: (a) They have been serving as an evacuation medic and served with the 2nd Battalion, 7th Infantry, for 31 consecutive months. During their career, mistakes have been made they have always tried to amend. After the initial incident with their spouse, they both attended marriage counseling and behavioral health counseling, eventually reaching an amicable decision to go their separate ways in August 2019. (b) When they were interviewed by special agents in March 2019, their spouse declined to continue the investigation because they were both working on their behavior internally. In 2019, the applicant participated in The Family Advocacy Anger Management Program, a 4-week intensive outpatient treatment program with behavioral health and mental health counseling sessions that helped change their behavior over the past year. (c) Although this does not excuse the offense, they are truly apologetic for past behavior and have taken various steps to become a better person and Soldier. (7) On 22 April 2020, the commander submitted the request to separate the applicant prior to their expiration term of service with characterization of service of general (under honorable conditions). The interim chain of command concurred with the commander recommendation. (8) On 1 May 2020, the applicant completed their election of rights signing they had been advised by counsel of the basis for their separation and its effects and of the rights available to them. (9) A Memorandum, Headquarters, 1st Armored Brigade Combat Team, subject: Separation under the Provisions of Army Regulation 635-200, Paragraph 14-12c, (Commission of Serious Offense) [Applicant], 20 May 2020, the separation authority directed the applicant will be separated from the Army prior to the expiration of current term of service and their service be characterized as General (Under Honorable Conditions). (10) On 19 August 2020, the applicant was discharged accordingly, the DD Form 214 provides the applicant completed 4 years and 5 days of net active service this period. i. Lost Time / Mode of Return: None j. Official Record(s) with Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: See paragraph 4h(3) and 4h(4). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Title 10, U.S. Code, Section 1553, (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, Title 10 U.S. Code, Section 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 (DoD) 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; Title 10 U.S. Code; Section 1553 and DoD Directive 1332.41 and DoD Instruction 1332.28. d. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), dated 19 December 2016, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. (1) 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. (2) 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. (3) A Under Other Than Honorable Conditions Discharge is an administrative separation form the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court-martial. (4) Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. 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. Paragraph 14-12c (Commission of a Service Offense), stated 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 600-85 (Army Substance Abuse Program (ASAP)) governs the program and identifies Army policy on alcohol and other drug abuse, and responsibilities. The ASAP is a command program that emphasizes readiness and personal responsibility. The ultimate decision regarding separation or retention of abusers is the responsibility of the Soldier’s chain of command. Abuse of alcohol or the use of illicit drugs by military personnel is inconsistent with Army values and the standards of performance, discipline, and readiness necessary to accomplish the Army’s mission. Unit commanders must intervene early and refer all Soldiers suspected or identified as alcohol and/or drug abusers to the ASAP. The unit commander should recommend enrollment based on the Soldier’s potential for continued military service in terms of professional skills, behavior, and potential for advancement. f. 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 14-12c, misconduct (serious offense). g. 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 DoD Instruction 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: (1) RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. (2) 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. (3) 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. g. Manual for Courts-Martial, United States, states military law consists of the statutes governing the military establishment and regulations issued thereunder, the constitutional powers of the President and regulations issued thereunder, and the inherent authority of military commanders. Military law includes jurisdiction exercised by courts-martial and the jurisdiction exercised by commanders with respect to nonjudicial punishment. The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the Armed Forces. Appendix 12 (Maximum Punishment Chart) Manual for Courts-Martial shows the maximum punishments include punitive discharge for violating the following articles of the UCMJ: Article128 (Assault Consummated by a Battery) and Article128 (Aggravated Assault with a Loaded Firearm in which Grievous Bodily Harm is intentionally inflicted). 8. SUMMARY OF FACT(S): a. Standard of Review: The Army Discharge Review Board considers applications for upgrade as instructed by DoD Instruction 1332.28. b. A review of the available evidence provides the applicant committed the serious offenses of domestic violence and aggravated assault by strangulation, when on or about 4 February 2019 they assaulted their spouse by strangulation with their hands. They completed 4 years and 5 days of their 6-year contractual obligation. (1) The available evidence provides the applicant underwent the required Medical Examination and Mental Status Evaluation as part of the separation process; however, the AMHRR provides a Mental Status Evaluation and Medical Examination with behavior health information that appears to have required a follow-up. The record is void of this documentation as well as documentation that indicates whether the applicant was command referred for the required Army Substance Abuse screening. (2) The applicant received a general (under honorable conditions) characterization of service rather than a discharge under other than honorable conditions, which is normally considered appropriate. c. Chapter 14 establishes policy and prescribes procedures for separation members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 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. d. Published DoD guidance indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 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 in-service with Adjustment Disorder, Anxiety Disorder Not Otherwise Specified, Unspecified Anxiety Disorder, Unspecified Depressive Disorder, and Personality Disordered Traits. Post-service, the applicant is service connected for Mood Disorder. (2) Did the condition exist, or experience occur during military service? Yes. The applicant was diagnosed in-service with Adjustment Disorder, Anxiety Disorder Not Otherwise Specified, Unspecified Anxiety Disorder, Unspecified Depressive Disorder, and Personality Disordered Traits. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that Intimate Partner Violence is not a progression or sequela of the applicant's diagnoses. (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 Adjustment Disorder, Anxiety Disorder Not Otherwise Specified, Unspecified Anxiety Disorder, Unspecified Depressive Disorder, and Personality Disordered Traits outweighed the basis for applicant’s separation for Intimate Partner Violence for the aforementioned reasons. b. Response to Contention(s): the applicant contends the majority of their service was honorable. The Board considered the applicant’s 4 years of service and the numerous awards received by the applicant but determined that these factors did not outweigh the applicant’s Intimate Partner Violence. 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, Anxiety Disorder Not Otherwise Specified, Unspecified Anxiety Disorder, Unspecified Depressive Disorder, and Personality Disordered Traits did not excuse or mitigate the offenses of Intimate Partner Violence. The Board also considered the applicant's contention regarding the majority of their service was honorable and found that totality of the applicant's record does not warrant a discharge upgrade. 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 General discharge was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to Honorable discharge. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, 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 AR20200010099 1