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, having served honorably for more than five years and earning numerous awards, including the Army Good Conduct Medal. The applicant states things in the household started going bad in October 2010, because of issues with the spouse. Everything else with the Army went well and had a clean record for five years. b. Board Type and Decision: In a records review conducted on 13 June 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 (Civil Conviction) / AR 635-200, Chapter 14, Sec II / JKB / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 23 November 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 25 October 2011 (2) Basis for Separation: The applicant was informed of the following reasons: On 19 July 2010, the applicant was convicted of Assault to the Fourth Degree (Domestic Violence) and Harassment (Domestic Violence). (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 26 October 2011 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 31 October 2011 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 January 2008 / 6 years b. Age at Enlistment / Education / GT Score: 26 / High School Graduate / 112 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M10, Motor Transport Operator / 5 years, 4 days d. Prior Service / Characterizations: RA, 6 July 2006 – 9 January 2008 / HD e. Overseas Service / Combat Service: Italy, SWA / Afghanistan (9 May 2007 – 10 July 2008) f. Awards and Decorations: ACM-CS, ARCOM, AAM-4, AGCM, NDSM, GWOTSM, ASR, OSR-2, NATOMDL, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Eight Developmental Counseling Forms, for various acts of misconduct. Superior Court of Washington State Conditions of Release, dated 16 February 2010, indicates the applicant was held in custody, was released on bail while awaiting the filing of charge(s), and to have no contact with the spouse. Superior Court of Washington State Domestic Violence No-Contact Order, dated 16 February 2010, indicates a no-contact order was imposed on the applicant to have no contact with the spouse, an imposition in effect for a period of five years. Superior Court of the State of Washington Statement of Defendant on Plea of Guilty (Misdemeanor), dated 19 July 2010, indicates the applicant having pled guilty to the crimes of assault fourth degree and harassment – gross misdemeanors, understood the rights listed and the consequences of the guilty plea. Commander’s Report of Disciplinary or Administrative Action, dated 22 October 2010, pursuant to an MP Report 00694-2010-MPC016-1, reflected the offenses of 12 February 2010: Assault Second Degree (Domestic Violence); Assault Fourth Degree (Domestic Violence); and Harassment (Domestic Violence), were adjudicated by civilian court on 19 July 2010, and the applicant was found guilty of the amended charges: assault in the fourth degree and harassment, and sentenced to pay a fee of $900, and 365 days in jail with 359 days suspended. The additional offenses were: interfering with reporting domestic violence and failing to obey a general order (weapons). Two Personnel Action forms reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY)” to “Confined by Civil Authorities (CCA),” effective 4 February 2011, and from “PDY” to “CCA,” effective 18 June 2011. Department of Corrections Order for Arrest and Detention, dated 21 April 2011, reflects the applicant was arrested and detained in a Community Custody Jail pursuant to having been convicted by the Superior Court on 19 July 2010, for failing to comply with the court order to have no contact with the spouse by contacting the spouse through telephone calls and text messages between the applicant’s release from custody on 6 March 2011 and 21 April 2011. Joint Base Lewis-McChord CCIR (Commanders Critical Information Report) indicates on 21 April 2011, the applicant was arrested by civil authorities for violating a court order to have no contact with the spouse, by contacting the spouse through a text message prior to appearing in a civilian court. The unit was informed on 25 April 2011, the applicant would be confined for 60 days. Report of Mental Status Evaluation (MSE), dated 8 October 2011, reflects the applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. The applicant had been screened for PTSD and mTBI with negative results. The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. The command was advised to consider the influence of these conditions. The applicant needed to be referred to ASAP for substance use disorders (i.e., alcohol and drugs). CG Article 15, dated 27 October 2011, for failing to go at the time prescribed to the appointed place of duty on three separate occasions, on 18, 19, and 21 October 2011. The punishment consisted of a reduction to E-3 (suspended); forfeiture of $455 pay; extra duty for 14 days; and an oral reprimand. Record Of Supplementary Action Under Article 15, UCMJ, dated 23 November 2011, reflects the suspended portion of the punishment imposed on 27 October 2011, was vacated for violation of Article 86, UCMJ, failure to repair on 28 October and 2 November 2011, and violation of Article 92, UCMJ, disobeying an order on 2 November 2011. i. Lost Time / Mode of Return: 134 days (Confined by Civil Authorities, 4 February 2011 – 17 June 2011) / Released from Confinement j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Mental Status Evaluation, dated 26 April 2010, reflects the applicant was hospitalized for suicidal ideation while intoxicated. The applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. The applicant’s “DSM IV” diagnoses were “conduct disorder, ADHD by history, adjustment disorder with depression and anxiety, and alcohol abuse. Report of Medical History, dated 5 August 2011, the applicant noted having been seeking treatment and counseling for depression, PTSD, and anxiety for the past three years, and the examining medical physician noted in the comments section: The applicant related to having anxiety issues and other mental health issues for a period of three years. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149. 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) Section II, Paragraph 14-5, prescribes conditions which subject a Soldier to discharge and reduction in grade. A Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present. This includes similar adjudication in juvenile proceedings: 1) A punitive discharge authorized for the same or a closely related offense under the MCM 2002, as amended; 2) The sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. Adjudication in juvenile proceedings includes adjudication as a juvenile delinquent, wayward minor, or youthful offender; Initiation of separation action is not mandatory. Although the conditions established in a (1) or (2), above, are present, the immediate commander must also consider whether the specific circumstances of the offense warrant separation. If the immediate commander initiates separation action, the case will be processed through the chain of command to the separation authority for appropriate action. A Soldier convicted by a civil court or adjudged a juvenile offender by a civil court will be reduced or considered for reduction. 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 “JKB” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, section II, misconduct (civil conviction). 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 document submitted with the application were carefully reviewed. Army Regulation 635-200, in pertinent part, stipulates a Soldier may be separated when initially convicted by civil authorities, or when action is taken tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for six months or more, without regard to suspension or probation. At the time of the applicant’s discharge, the applicant had been released from confinement by civilian authorities on 18 June 2011. The applicant contends good service, earning numerous awards and the Army Good Conduct Medal. 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’s AMHRR contains documentation which supports diagnoses of an adjustment disorder with depression, anxiety, and alcohol abuse. The record shows the applicant underwent a mental status evaluation (MSE) on 26 April 2010, which indicates the applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. 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: PTSD; evidence of noteworthy mood/depressive symptoms at the time of service primarily diagnosed as adjustment disorder; obsessive-compulsive disorder; and a history of mild TBI. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant is service connected (SC) for PTSD and had evidence of noteworthy mood symptoms in addition to a diagnosis of Obsessive-Compulsive Disorder while on active duty. There are also references to mild TBI in his record. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that applicant is SC for PTSD (with diagnosis also referenced in Active Duty records) and has evidence of noteworthy mood concerns while on Active Duty, primarily diagnosed as adjustment disorder. Although adjustment disorders are not typically considered mitigating, the advisor concludes that the nature of the symptoms diagnosed as adjustment disorder on AD result in consideration of adjustment disorder as a potentially mitigating condition. Although it appears applicant was eventually diagnosed with bipolar disorder, the advisor appreciates the lack of this diagnosis on active duty despite evaluation and care by numerous providers. There is also compelling evidence of obsessive-compulsive disorder documented in active-duty records. History of TBI is also noted, although available records suggest there were not residuals of such a degree as to result in noteworthy impairment of cognition, judgment, or behavior that would result in potential mitigation. Ultimately, service-connected PTSD, obsessive-compulsive disorder, and mood symptoms diagnosed as adjustment disorder are worthy of consideration; however, none of these conditions result in the inability to differentiate right from wrong and adhere to the right, and there is not a nexus between PTSD, OCD, or adjustment disorder and the domestic violence-related charges leading to applicant’s discharge. (4) Does the condition or experience outweigh the discharge? N/A. a. Response to Contention(s): (1) The applicant contends good service, earning numerous awards and the Army Good Conduct Medal. The Board considered the applicant’s 5.4 years of service, including a combat tour in Afghanistan and the numerous awards received by the applicant but determined that these factors did not outweigh the applicant’s conviction of Assault to the Fourth Degree (Domestic Violence) and Harassment (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 does not mitigate the applicant’s conviction of Assault to the Fourth Degree (Domestic Violence) and Harassment (Domestic Violence) as the Army affords many avenues to Soldier’s including seeking separation for hardship. b. 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. c. 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, obsessive-compulsive disorder, and mood symptoms diagnosed as adjustment disorder did not excuse or mitigate the offenses of domestic assault and harassment resulting in confinement. The Board also considered the applicant's contention regarding family issues and the applicant's behavioral health condition 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 AR20210001844 1