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 general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, after suffering from a torn right rotator cuff and being in a bad car accident, the applicant returned to duty and was told the profile did not matter to Rear D and the applicant was still to perform Rear D duties. The applicant was not able to perform these duties and was told they were being insubordinate and put on extra duty which the applicant also could not perform. The applicant was demoted and an extra three months of extra duty. The applicant reported this to the Inspector General and Congress who eventually investigated the unit. After the investigation, the applicant was demoted again and recommended for a discharge. The discharge was disrespectful, unprofessional, and inconsiderate due to the applicant’s physical abilities at the time and the applicant’s affection for the Army. The applicant now has a 90 percent VA rating and 100 percent Social Security rating due to malpractice and disobeying the applicant’s profile. b. Board Type and Decision: In a records review conducted on 18 July 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 (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 14 July 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 21 May 2010 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was charged with Spouse Abuse and Simple Assault Consummated by Battery on 16 January 2010 and 15 April 2010; Failed to report for Extra Duty on 20 May 2010; and, Failed to report for formation on 21 May 2010. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 8 June 2010 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 16 June 2010 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 January 2008 / 3 years, 17 weeks b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / 92 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 2 years, 6 months, 6 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea, SWA / Iraq (3 October 2009 – 6 December 2009) f. Awards and Decorations: AAM-2, NDSM, GWOTSM, ASR, ICM-BS g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Military Police Report Number 00152-210- MPC013, dated 16 January 2010, reflects the applicant was being investigated for Spouse Abuse -Civilian Victim (Art 134, UCMJ) (On Post); Assault Consummated by Battery (Art 134, UCMJ) (On Post); and, Damage to Private Property (Art 134, UCMJ) (On Post). A. G. reported being involved in a verbal dispute which turned physical when the applicant threw A. G. onto the couch and put the hand over A. G’s mouth and throat. The applicant later threw a chair into the wall, causing damage to the residence. The applicant was apprehended and further processed and released to the unit. Military Police Report Number 01041-2010-MPC013, dated 16 April 2010, reflects the applicant was being investigated for Spouse Abuse – Civilian Victim (Art 134, UCMJ) (On Post); and Simple Assault – Consummated by Battery (Art 128, UCMJ) (On Post). A. G. reported being involved in a verbal altercation with the applicant which turned physical when the applicant shoved and pushed A. G. down and A. G. retaliated and slapped the applicant with an open hand in the mouth, while trying to knock the cell phone from the applicant’s hand. The applicant was apprehended and further processed and released to the unit. Medical Record, dated 21 April 2010, reflects the applicant was seen for mental health screening for administrative separation. Service member verbalized understanding of the proceedings and agreed to continue with examination. There were no overt psychiatric conditions noted on review of records and evaluation requiring disposition through medical channels. There was no indication of TBI or PTSD; should further symptoms arise; the Soldier should be evaluated again. This individual is and was mentally responsible, able to distinguish right from wrong and adhere to the right. This Solider was psychologically cleared for any administrative actions deemed appropriate by command. FG Article 15, dated 19 May 2010, for assaulting A. G. by grabbing by the arm and throwing A. G. on the bed on or about 16 January 2010; and, assaulted A. G. by throwing A. G. to the couch and putting hands over the mouth and throat on or about 16 January 2010. The punishment consisted of a reduction to E-3; forfeiture of $906 pay per month for two months (suspended); and extra duty and restriction for 45 days. Developmental Counseling Form, for Simple Assault Consummated by Battery (x2); Spouse Abuse (x2); various acts of misconduct. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: VA Rating Decision Letter, dated 11 April 2012, reflects the applicant was granted a total of 90 percent service-connected disability which 50 percent was granted for PTSD. Social Security Administration Letter, dated 18 September 2015, reflects the applicant’s disability claim was medically approved; however, the letter does not provide the nature of the disability. (2) AMHRR Listed: Medical Record, undated, the attending physician noted the applicant was being seeing a CMH for anger issues; martial/legal problems; and Adjustment Disorder. It also states the applicant was reporting Depression. Report of Medical Examination, dated 21 April 2010, the examining medical physician noted in the comments section: Adjustment Disorder. 5. APPLICANT-PROVIDED EVIDENCE: Online Application; Certificate of Live Birth; Orders A-10- 929286; Orders 52-3364; VA Medical Records; DA Form 3349; Cover Page; DA Form 4856; Privacy Act Consent Form; United States Senate Letter; two VA Letters; Social Security Administration Letter; Orange Park Medical Center Documents; Enlisted Record Brief; DD Form 214. 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) 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. (5) 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. (6) 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 waivable and nonwaivable 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 waivable. 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 good service, including a combat tour. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends after suffering from a torn right rotator cuff and being in a bad car accident, the applicant returned to duty and was told the profile did not matter to Rear D and the applicant was still to perform Rear D duties. The applicant was not able to perform these duties and was told they were being insubordinate and put on extra duty which the applicant also could not perform. The applicant was demoted and an extra three months of extra duty. The applicant reported the unit to the Inspector General and Congress who eventually investigated the unit. After the investigation, the applicant was demoted again and recommended for a discharge. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends having a 90 percent VA rating and 100 percent Social Security rating due to malpractice and disobeying the applicant’s profile. The applicant provided a copy of VA Rating Decision Letter, dated 11 April 2012, which reflects the applicant was granted a total of 90 percent service-connected disability which 50 percent was granted for PTSD. The applicant also provided a copy of Social Security Administration Letter, dated 18 September 2015, which reflects the applicant’s disability claim was medically approved; however, the letter does not provide the nature of the disability. The AMHRR contains a Medical Record, undated, which reflects the attending physician noted the applicant was being seeing a CMH for anger issues; martial/legal problems; and Adjustment Disorder. It also states the applicant was reporting Depression. Report of Medical Examination, dated 21 April 2010, reflects the examining medical physician noted in the comments section: Adjustment Disorder. The medical record and medical report were 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: PTSD and associated depression/anxiety; history of other potentially mitigating diagnoses noted in VA records to include schizoaffective disorder, mood disorders, anxiety disorders. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant is service connected for PTSD with additional evidence of noteworthy depression and anxiety (generally subsumed under PTSD) while on Active Duty. Advisor did not appreciate any compelling evidence for psychosis during applicant’s period of active service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that applicant has been diagnosed with service-connected PTSD with additional evidence of anxiety and depression diagnosed during active service. PTSD (with associated depression and anxiety) results in partial mitigation of basis of separation; PTSD is characterized by avoidance behaviors and therefore there is a nexus between this diagnosis and FTR. However, PTSD and depression/anxiety do not result in the inability to distinguish between right and wrong and adhere to the right, and there is no nexus between such conditions and the multiple counts of assault/spouse abuse cited in the basis of separation. The advisor appreciates reference to psychosis in VA records, potentially substance-related, but there is no evidence of psychosis noted in applicant’s active-duty records and it does not appear relevant to the period of service. (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 PTSD and depression and anxiety outweighed the basis for applicant’s separation – multiple counts of assault/spouse abuse. b. Response to Contention(s): (1) The applicant contends good service, including a combat tour. The Board considered the applicant’s two years of service (including a combat tour in Iraq) and the numerous awards received but determined that these factors did not outweigh the applicant’s multiple counts of assault/spouse abuse. (2) The applicant contends after suffering from a torn right rotator cuff and being in a bad car accident, the applicant returned to duty and was told the profile did not matter to Rear D and the applicant was still to perform Rear D duties. The applicant was not able to perform these duties and was told they were being insubordinate and put on extra duty which the applicant also could not perform. The applicant was demoted and an extra three months of extra duty. The applicant reported the unit to the Inspector General and Congress who eventually investigated the unit. After the investigation, the applicant was demoted again and recommended for discharge. The Board considered this contention and determined the applicant’s PTSD, depression, and anxiety diagnoses mitigated applicant’s failure to report for extra duty and formation, however the multiple counts of assault/spousal abuse is not mitigated, thus the applicant was properly and equitably discharged. (3) The applicant contends having a 90 percent VA rating and 100 percent Social Security rating due to malpractice and disobeying the applicant’s profile. The Board liberally considered this contention and determined that the available evidence did not support a conclusion that the applicant’s PTSD, depression and anxiety outweighed the basis for applicant’s separation – multiple counts of assault/spouse abuse. The Board also considered the totality of the applicant’s record, including the applicant’s BH condition and determined that a discharge upgrade is not warranted based on the seriousness of the applicant’s multiple counts of assault/spousal abuse misconduct. 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 PTSD and depression and anxiety did not excuse or mitigate the offenses of multiple counts of assault/spouse abuse. The Board also considered the applicant's contentions 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, 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 AR20210001779 1