1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 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. The applicant seeks relief contending, in effect, the discharge was inequitable because it was based on a single isolated incident during the 186 months (over 15 years) of good service with no other adverse action. The discharge was caused by an accident while on leave. Military records with two combat tours will demonstrate the applicant served the country with dignity and honor. b. Board Type and Decision: In a records review conducted on 16 November 2023, and by a 3-2 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board’s decision. Board member names available upon request. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 19 June 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 20 March 2012 (2) Basis for Separation: The applicant was informed of the following reasons: On 26 December 2011, the applicant operated a motor vehicle while under the influence of alcohol. The applicant recklessly engaged in conduct that created a grave risk of death and thereby caused the death of T. S. B. The State of Arizona charged the applicant with one count of second-degree murder in violation of A.R.S. 13-1104(A)(3), 13-105. The applicant also committed aggravated assault and was charged with five counts of aggravated assault in violation of A.R.S. 13-1204(A)(2) and (3), 13-704, 13-105. Furthermore, the applicant committed endangerment and was charged with four counts of endangerment in violation of A.R.S. 13-1201(A), 13-704, 13-105. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 20 March 2012 (5) Administrative Separation Board: On 5 April 2012, the applicant was notified to appear before an administrative separation board and advised of rights. On 21 May 2012, the administrative separation board convened, and the applicant appeared with counsel. The Board determined the applicant engaging in conduct which caused a grave risk of death and thereby causing the death of T. S. B. was supported by a preponderance of the evidence. The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions and to suspend the separation for 12 months or upon the conclusion of the civilian court, whichever was sooner. (6) Separation Decision Date / Characterization: 7 June 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 July 2007 / Indefinite b. Age at Enlistment / Education / GT Score: 34 / Associate Degree / 119 c. Highest Grade Achieved / MOS / Total Service: E-6 / 88M10, Motor Transport Operator; 19K30, M1 Armor Crewman / 15 years, 8 months, 14 days d. Prior Service / Characterizations: RA, 6 October 1996 – 23 June 1999 / HD RA, 24 June 1999 – 17 June 2002 / HD RA, 18 June 2002 – 23 May 2005 / HD RA, 24 May 2005 – 12 July 2007 / HD e. Overseas Service / Combat Service: Germany, SWA / Kuwait (23 February 2003 – 31 July 2003); Iraq (24 August 2008 – 18 August 2009) f. Awards and Decorations: ICM-2CS, ARCOM-3, AAM-2, AGCM-5, NDSM, GWOTEM, GWOTSM, NCOPDR-3, ASR, OSR-2 g. Performance Ratings: 1 April 2007 – 3 August 2009 / Among the Best 4 August 2009 – 14 November 2011 / Among the Best 15 November 2011 – 31 January 2012 / Marginal h. Disciplinary Action(s) / Evidentiary Record: Developmental Counseling Form for being recommended for separation under Chapter 14-12c. La Paz County Jail Arrest/Booking Record, 27 December 2011, reflects the applicant was arrested on 16 December 2011, for being involved in a collision and occupancy of the other vehicle died at the scene. The applicant performed poorly on FSTs; alcohol was found near the truck at the scene. The charge was “ARS 13-1104A2” 2nd Degree Murder and the circumstances indicated the applicant was involved in a collision with injury and death, the nature of injuries was fatal, and the applicant was under the influence of alcohol. Continuation/Supplemental Report, Charging Summary of State vs. the applicant, reflects the charges of one Count of ARS § 13-1104.A.3, Second Degree Murder, Class I Felony; one Count of ARS § 13-1204.A.1, Aggravated Assault, Class 2 Felony; one Count of ARS § 13-1602.A.1, Criminal Damage, Class 6 Felony; and 3 Counts of ARS § 13-1201.A, Endangerment, Class 6 Felony. Superior Court of the State of Arizona, County of La Paz, Indictment – Supervening, listed the following Charges: Count One – Second Degree Murder, a Class One Felony; Counts Two to Five – Aggravated Assault, a Dangerous Offense, a Class Three Felony; Count Six – Aggravated Assault, a Dangerous Offense, a Class Four Felony; and Counts Seven to Ten – Endangerment, a Dangerous Offense, a Class Six Felony. General Officer Memorandum Of Reprimand, 23 February 2012, reflects the applicant committed an involuntary manslaughter and aggravated assault while driving under the influence of alcohol. On 25 December 2011, after the officers detected the smell of alcohol and transporting the applicant to the highway patrol office, the blood drawn from the applicant, revealed a BAC of .13 percent. Report of Proceedings by Investigating Officer/Board of Officers with summarized Administrative Board Proceedings, 21 May 2012, reflects the Board found: The applicant did commit the misconduct of engaging in a conduct which created a grave risk of death and thereby caused the death of B., and the applicant did not commit aggravated assault against R, A., D., and C. In view of the findings, the Board recommended the applicant be discharged with an Under Other Than Honorable Conditions characterization of service and suspend the separation for 12 months, or upon the conclusion of the civilian court, whichever was sooner. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Mental Status Evaluation (pages 1 and 2 of 3 pages), undated, reflects the applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. The “AXIS I” diagnosis was “Anxiety disorder NOS, Depressive disorder NOS.” Report of Medical History, 31 January 2012, reflects the applicant noted behavioral health issues and the examining medical physician noted in the comments section: Recent traumatic events (death, incarceration) and PTSD from multiple deployments to Iraq. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; and DD Forms 214 and 214c. 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 (Active Duty Enlisted Administrative Separations) 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 prescribes a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKQ” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). f. Army Regulation 601-210, (Regular Army and Reserve Components Enlistment Program) governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1 defines reentry eligibility (RE) codes: RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends the discharge was inequitable because it was based on a single isolated incident during 186 months of good service with no other adverse action. Army Regulation 635- 200, paragraph 3-5, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends military records with two combat tours will demonstrate having served the country with dignity and honor. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant’s AMHRR contains documentation which supports a diagnosis of in-service PTSD, anxiety disorder, and depressive disorder. The record shows the applicant underwent a mental status evaluation (MSE) in January 2012, which indicates the applicant was mentally responsible and was able to recognize right from wrong. The MSE was considered by the separation authority. 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/experiences: Adjustment Disorder, Depression, Anxiety, Post Traumatic Stress Disorder (PTSD). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found evidence of multiple potentially mitigating BH conditions. The applicant was diagnosed in service with an Adjustment Disorder, Depression, and Anxiety. The applicant is also diagnosed and service connected by the VA for PTSD. Service connection establishes that the applicant's PTSD existed during military service. (3) Does the condition or experience excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that there is evidence of multiple potentially mitigating BH conditions. The applicant was diagnosed in service with an Adjustment Disorder, Depression, and Anxiety. The applicant is also diagnosed and service connected by the VA for PTSD. There is a nexus between Depression, PTSD, and self-medicating with substances that often mitigates a simple DUI. In this applicant’s case, however, the BH conditions do not mitigate second-degree murder and multiple counts of aggravated assault and endangerment. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor’s opine, the Board determined that the available evidence did not support a conclusion that the applicant’s Adjustment Disorder, Depression, Anxiety, and PTSD outweighed the medically unmitigated offenses of second-degree murder and multiple counts of aggravated assault and endangerment. b. Response to Contention(s): (1) The applicant’s AMHRR contains documentation which supports a diagnosis of in- service PTSD, anxiety disorder, and depressive disorder. The Board liberally considered this contention but determined that the available evidence did not support a conclusion that the applicant’s Adjustment Disorder, Depression, Anxiety, and PTSD outweighed the medically unmitigated offenses of second-degree murder and multiple counts of aggravated assault and endangerment. Therefore, a discharge upgrade is not warranted. (2) The applicant contends the discharge was inequitable because it was based on a single isolated incident during 186 months of good service with no other adverse action. The Board considered this contention but determined that the applicant’s service record does not outweigh the severity of the applicant’s offenses. The Board found that the misconduct is an single incident, which may serve as the basis of separation and characterization of service in accordance with AR 635-200, paragraph 3-5. (3) The applicant contends military records with two combat tours will demonstrate having served the country with dignity and honor. The Board considered the applicant’s service, including multiple overseas tours and service in Iraq, but found that the applicant’s record does not outweigh the severity of the applicant’s offenses. 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 to all the evidence before the Board, the applicant’s Adjustment Disorder, Depression, Anxiety, and PTSD did not outweigh the applicant’s medically unmitigated offenses of second-degree murder and multiple counts of aggravated assault and endangerment. The Board also considered the applicant's contention of good service and the misconduct being an isolated incident and found that the totality of the applicant's record does not warrant a discharge upgrade. The applicant did not present any issues of impropriety for the Board’s consideration. 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 Under Other Than Honorable Conditions discharge was proper and equitable as the applicant’s conduct fell below that level of satisfactory service warranting a General discharge or meritorious service warranting an Honorable discharge. (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 AR20210001498 1