1. Applicant's Name: a. Application Date: 17 August 2020 b. Date Received: 25 August 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to honorable or general (under honorable conditions). The applicant seeks relief contending, in effect, while visiting a family he unintentionally injured someone. He felt that he was defending himself and his family. He was not charged on the day of the incident and no one filed charges against him; however, he was later arrested and formally charged with assault. The applicant states he was a great Soldier. He served in Iraq and his mental state has not been the same since returning. He believes he suffers from post- traumatic stress disorder (PTSD). An upgrade would provide him with the opportunity to obtain benefits so he could take care of his mental and physical issues. The applicant states due to his military training he became a chef. In a records review conducted on 22 September 2021, 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: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 13 February 2006 c. Separation Facts: (1) DD Form 458 (Charge Sheet): dated 12 October 2005, reflects the applicant was charged with committing as assault upon J.M. by shooting him in the face with a dangerous weapon on or about 15 July 2005. (2) Legal Consultation Date: 17 January 2006 (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 27 January 2006 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 December 2003 / 4 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 88 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92G, Food Service Operation / 4 years, 5 months, 17 days d. Prior Service / Characterizations: RA, 27 August 2001 - 7 December 2003 / HD e. Overseas Service / Combat Service: NIF / NIF f. Awards and Decorations: GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: On 11 August 2005, the applicant was arrested on warrants for aggravated assault; assault with a deadly weapon; injury to personal property; and discharging a firearm within city limits. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Personal Statement, VA Form 21-22 6. POST SERVICE ACCOMPLISHMENTS: The applicant states due to his military training he became a chef. 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 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Army policy states that although an honorable or general (under honorable conditions) discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant's AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable or general, under honorable conditions. The evidence of record confirms the applicant was charged with the commission of a serious offense punishable under the UCMJ with a punitive discharge. The applicant, in consultation with legal counsel voluntarily requested, in writing, a discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and he indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veterans' benefits. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. His Army Human Resource Record (AMHRR) documents no acts of achievement or valor; and it did not support the issuance of an honorable or a general (under honorable conditions) discharge by the separation authority at the time of discharge. The applicant contends while visiting a family he unintentionally injured someone; however, he felt that he was defending himself and his family. The applicant also contends he served in Iraq and his mental state has not been the same since returning. He believes he suffers from PTSD. The applicant's available medical records are void of evidence showing the applicant was diagnosed with PTSD or any behavioral health issue. The applicant further contends an upgrade would provide him with the opportunity to obtain benefits so he could take care of his mental and physical issues. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant states he was a great Soldier. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, and his post- service accomplishments, the Board can find that his complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service. 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 applicant contends that he has PTSD that may excuse or mitigate the basis for separation. The Board's Medical Advisor, a voting member, reviewed DoD and VA medical records and found the applicant's record does not contain any evidence that supports the applicant's contention that applicant has been diagnosed with PTSD, but did find evidence that applicant completed a TBI evaluation, a condition that could excuse or mitigate the basis for separation. (2) Did the condition exist or experience occur during military service? Yes. The applicant contends that his PTSD was in-service and separately the 2015 TBI evaluation was conducted after an in-service exposure. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The ADRB's Medical Advisor liberally considered all documentation in the applicant's health records, the applicant's AMHRR, and those provided by the applicant, and determined that the applicant did not actually have a condition or experience that mitigates or excuses the basis for separation. This determination is based on applicant's TBI evidence that states applicant did not have TBI conditions that could excuse or mitigate the aggravated assault, assault with a deadly weapon, injury to personal property, and discharging a firearm within city limits basis for his separation. Further, the Board's Medical Advisor's determination is based on liberally considering all the evidence, including applicant's PTSD contention along with applicant's entire medical record, that concludes applicant's PTSD condition could not excuse or mitigate the aggravated assault, assault with a deadly weapon, injury to personal property, and discharging a firearm within city limits basis for his separation. (4) Does the condition or experience outweigh the discharge? No. The Board, after liberally considering all the evidence during its deliberations, concurred with the Board's Medical Advisor that applicant did not have a condition or experience that outweighs the severity of the applicant's charges for aggravated assault, assault with a deadly weapon, injury to personal property, and discharging a firearm within city, that were the basis for applicant's separation. b. Response to Contention(s): (1) The applicant states he was a great Soldier. The Board liberally considered the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, and his post-service accomplishments, during the Board's deliberations. The ADRB determined the applicant's quality of service did not outweigh the charges of Aggravated Assault, Injury to Personal Property, and Discharging a Firearm within City Limits. (2) The applicant contends while visiting a family he unintentionally injured someone; and that unintentional injury was caused by applicant defending himself and his family. The ADRB considered the police report in the separation papers and determined that the applicant's action of firing a deadly weapon was not suitable behavior for a Soldier under those circumstances. (3) The applicant also contends he served in Iraq and his mental state has not been the same since returning. He believes he suffers from PTSD. The Board liberally considered applicant's contention along with all other evidence before the Board, and the Board concurred with its Medical Advisor that the weight of the evidence supported the determination that applicant's charges of Aggravated Assault, Injury to Personal Property, and Discharging a Firearm within City Limits were not excused, mitigated or outweighed by the PTSD claim. (4) The applicant further contends an upgrade would provide him with the opportunity to obtain benefits so he could take care of his mental and physical issues. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. c. The Board denied the request to upgrade applicant's discharge characterization upon finding the separation was both proper and equitable. The Board, after liberally considering all the evidence, determined that the documentation contained in the AMHRR, as well as evidence submitted by the applicant did not support a finding that the applicant's discharge was improper or inequitable. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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, while liberal consideration was applied, the evidence does not support that applicant has any medical condition or experience that excuses, mitigates or outweighs the offenses of assault by shooting an individual in the face with a weapon. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code 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 to: No Change d. Change Authority to: No Change e. Change SPD / RE Code 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 AR20200010236 1