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, in effect stating, the applicant served honorably; however, it was overlooked due to a motorcycle accident which was originally deemed due to the applicant’s own misconduct. The unit started a in line of duty investigation which brought stress between the applicant and spouse. The applicant is back in school studying to be a physical therapist and making smart choices. The applicant’s license is no longer suspended and the applicant has a motorcycle permit. The applicant and spouse have started to build their relationship back up. b. Board Type and Decision: In a records review conducted on 13 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: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 15 January 2015 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 13 November 2014, the applicant was charged with: Charge I: Violating Article 128, UCMJ. Specification 1: The applicant did on or about 10 September 2014, unlawfully grab A. R. H. around the neck with the arm. Specification 2: The applicant did on or about 10 September 2014, unlawfully grab A. R. H. around the body with the hand and arms. Specification 3: The applicant did on or about 27 April 2013, unlawfully grab A. R. H. by the arm with the hand. Charge II: Violating Article 92, UCMJ. The Specification: The applicant did on or about 4 July 2014, fail to obey a lawful general regulation, to wit: paragraph 4-5a, Maneuver Center of Excellence Regulation 190-5, dated 9 March 2011, by wrongfully controlling a motorcycle without being properly licensed, without completing the Motorcycle Safety Foundation (MSF) Basic Course, by not wearing the required motorcycle safety equipment, and paragraph 4-5g, by wrongfully controlling a motorcycle without receiving Battalion Commander approval. Charge III: Violating Article 90, UCMJ. The Specification: The applicant having received a lawful command from COL M. S. H. to not operate a motor vehicle on Fort Benning or any land under the jurisdiction of Fort Benning did on or about 4 July 2014, willfully disobey the same. (2) Legal Consultation Date: 12 December 2014 (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: 6 January 2015 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 August 2012 / 3 years, 26 weeks b. Age at Enlistment / Education / GT Score: 19 / High School Graduate / 102 c. Highest Grade Achieved / MOS / Total Service: E-2 / 91F10, Small Arms/Artillery / 2 years, 4 months, 18 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Military Police Report Number 01036- 2013-MPC013, dated 27 April 2013, reflects the applicant was apprehended for Spouse Abuse Civilian (Art 134, UCMJ) (On Post); Assault Consummated by Battery (Art 128, UCMJ) (On Post); and Verbal Domestic (No Charges) (1st Offense) (On Post). CG Article 15, dated 22 May 2013, for on or about 27 April 2013, assault A. R. H. by grabbing the arm. The punishment consisted of a reduction to E-1; forfeiture of $353 pay (suspended); and extra duty and restriction for 14 days. Military Police Report Number 03525-2013-MPC013, dated 6 December 2013, reflects the applicant was charged with Traffic Accident with Injuries/Damage to Private Property (POV/POV) (ART 134, UCMJ) (On Post); Driving while License Suspended (MCOE REG 190-5) (On Post); Following too closely (OCGA 40-6-49) (On Post); and Expired Plates (OCGA 40-2-8) (On Post). FG Article 15, dated 10 February 2014, for disobeying a lawful command from COL N. S. H. on or about 17 December 2013. The punishment consisted of a reduction to E-1; forfeiture of $200 pay per month for two months; and extra duty and restriction for 45 days. Report of Investigation Line of Duty and Misconduct Status, 3 September 2014, reflects the accident occurred, “Not in the Line of Duty – Due to Own Misconduct”. Military Police Report Number 2416-2014, dated 11 July 2014, reflects the applicant was charged with Traffic Accident Without Injuries/Damage to Private Property (Single Veh) (Art 134, UCMJ) (On Post); Driving While License Suspended/Cancelled/Revoked (GA Code 40-5-121) (On Post); Unlicensed Driver (GA Code 40-5-20(A)) (On Post); Failure to Drive on the Roadway Laned for Traffic (GA Code 40-6-48) (On Post); and, Failure to Obey Regulation – Not Wearing Proper Motorcycle PPE (Long Sleeves/Gloves/Boots-MCOE Reg 190-5) (Art 92, UCMJ) (On Post). Military Police Report Number 03345-2014-MPC013, dated 10 September 2014, reflects the applicant was apprehended for Spouse Abuse Civilian (Art #134, UCMJ) (On Post) and Assault Consummated by Battery (Art 128 UCMJ) (On Post). Developmental Counseling Forms, for discussing driving privileges; discussing traffic violation; notice of flag; inform Soldier for second time to not operate POV until proof of proper registration has been presented to CoC; notice of flag; and discreditable involvement with military authorities and conduct prejudicial to good order and discipline. Charge sheet as described in paragraph 3c(1). i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Line of Duty Determination (Overturn) Memorandum, dated 7 January 2015, reflects after a thorough administrative review of the Line of Duty Investigation, the findings were changed from “Not in Line of duty – due to Own Misconduct” to “In Line of Duty.” The applicant suffered traumatic brain injuries, skull fractures, hematomas, and hemorrhaging as a result of a single motorcycle accident. (2) AMHRR Listed: Statement of Medical Examination and Duty Status, dated 4 July 2014, reflects the applicant was involved in a motorcycle accident resulting in extensive Traumatic Brain Injury. Shepherd Center Dictation Report, dated 12 August 2014, reflects the applicant was being treated for post traumatic brain injury secondary to a motorcycle collision. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; Appeal of “Not in the Line of Duty” Determination Memorandum; Affidavit; two photographs; Line of Duty Determination Memorandum; Letter to VA; VA Decision Letter; DD Form 214. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is back in school and studying to be a physical therapist and making wise choices. The license is no longer suspended, and the applicant now has a motorcycle permit. The applicant and spouse have started to build their relationship back. 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 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. (5) Paragraph 10-8a stipulates a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. (See chap 3, sec II.) 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 “KFS” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, In Lieu of Trial by Court-Martial. f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The evidence in the applicant’s Army Military Human Resource Record (AMHRR) confirms the applicant was charged with the commission of an 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 AR 635-200, Chapter 10, in lieu of trial by court- martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and indicated an understanding an under other than honorable conditions discharge could be received, and the discharge would have a significant effect on eligibility for veterans’ benefits. The general (under honorable conditions) discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends good service. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends family issues affected behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends after being in a motorcycle accident, the unit started a line of duty investigation, which brought stress upon the applicant and spouse. The applicant provided a copy of Line of Duty Determination (Overturn) Memorandum, dated 7 January 2015, which reflects after a thorough administrative review of the Line of Duty Investigation, the findings were changed from “Not in Line of duty – due to Own Misconduct” to “In Line of Duty”. The applicant suffered traumatic brain injuries, skull fractures, hematomas, and hemorrhaging as a result of a single motorcycle accident. The AMHRR includes a Report of Investigation Line of Duty and Misconduct Status, dated 3 September 2014, reflecting the accident occurred, “Not in the Line of Duty – Due to Own Misconduct”. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends being back in school and studying to be a physical therapist and making wise choices. The applicant contends their license is no longer suspended, and the applicant now has a motorcycle permit. The applicant and spouse have started to build their relationship back. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. 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: TBI, Adjustment Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed in service with an Adjustment Disorder and a TBI. The VA has also service connected applicant’s TBI. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the applicant was diagnosed in service with an Adjustment Disorder and a TBI. The VA has also service connected applicant’s TBI. However, these BH conditions do not provide mitigation for the basis of applicant’s separation. There is no natural sequela between an Adjustment Disorder or a TBI and perpetrating domestic abuse, which is a targeted violent act not associated with these conditions. In addition, failing to obey a general lawful regulation and a lawful command are not mitigated by an Adjustment Disorder or a TBI because neither condition interferes with the ability to distinguish between right and wrong and act in accordance with the right. (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 and a TBI outweighed the basis for applicant’s separation – domestic abuse – for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends good service. The Board considered the applicant’s 2 years, 4 months, 18 days but determined that these factors did not outweigh the applicant’s domestic violence. (2) The applicant contends family issues affected behavior and ultimately caused the discharge. The Board considered this contention and determined that the applicant’s family issues do not mitigate the applicant’s perpetration of domestic violence as the Army affords many avenues to Soldier’s including seeking separation for hardship. (3) The applicant contends after being in a motorcycle accident, the unit started a line of duty investigation, which brought stress upon the applicant and spouse. The Board considered this contention and determined that the applicant’s stress from an investigation does not mitigate the applicant’s perpetration of domestic violence as the Army affords many avenues to Soldier’s including seeking separation for hardship. (4) The applicant being back in school and studying to be a physical therapist and making wise choices; and their license is no longer suspended, and now has a motorcycle permit. The applicant and spouse have started to build their relationship back. The Board considered this contention and determined that the applicant’s post service endeavors to be a physical therapist, regaining their license and improved relationship do not outweigh the misconduct based on the seriousness of the applicant’s offense of perpetrating domestic violence. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, there is no natural sequela between an Adjustment Disorder or a TBI and perpetrating domestic abuse, which is a targeted violent act not associated with these conditions In addition, failing to obey a general lawful regulation and a lawful command are not mitigated by an Adjustment Disorder or a TBI because neither condition interferes with the ability to distinguish between right and wrong and act in accordance with the right. 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 AR20210001784 1