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 honorable. The applicant requests a narrative reason change. The applicant seeks relief contending, in effect, being charged with a crime of domestic violence after returning from the applicant’s fourth deployment. The case was later dismissed and expunged prior to the applicant’s separation. The company commander went out of the way to have the applicant kicked out. The applicant has many physical and mental health issues. The applicant was separated prior to having a medical evaluation board conducted. Upon exiting the service after almost 17 years, the applicant was rated by the Department of Veterans Affairs (VA) 90 percent disabled, with 70 percent being for post-traumatic stress disorder (PTSD) and 40 percent for traumatic brain injury (TBI). The applicant’s provider knew the applicant needed an MEB but did not pursue the MEB because of the political climate. The applicant served with honor and distinction. The applicant further details the contentions in the application. b. Board Type and Decision: In a records review conducted on 17 May 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, Paragraph 14-12c / JKQ / RE-3 / Honorable b. Date of Discharge: 3 April 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 14 May 2012 (2) Basis for Separation: The applicant was informed of the following reasons: On 4 May 2012 in Leland, North Carolina, the applicant grabbed C. G., the applicant’s spouse, by the neck and threw C. G. to the ground. This is in violation of Article 128, UCMJ. On 8 January 2013, the applicant made a false official statement to Colonel (COL) J. B., Command Sergeant Major (CSM) T. D., Lieutenant Colonel (LTC) D. L., CSM G. T., Major (MAJ) D. F., and First Sergeant (1SG) A. W., about the facts and circumstances surrounding the assault of the spouse in violation of Article 107, UCMJ. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 16 May 2013 (5) Administrative Separation Board: On 16 May 2013, the applicant requested personal appearance before an administrative separation board. On 19 June 2013, the case was referred to an administrative separation board. On 18 July 2013, the applicant was notified to appear before an administrative separation board and advised of rights. On 5 September 2013, the administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant’s discharge with characterization of service of honorable. The separation authority approved the findings and recommendations of the administrative separation board. (6) Separation Decision Date / Characterization: 7 October 2013 / Honorable 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 October 2009 / Indefinite b. Age at Enlistment / Education / GT Score: 31 / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-7 / 38B4P W4, Civil Affairs Specialist / 17 years, 11 months, 25 days d. Prior Service / Characterizations: ARNG, 9 April 1996 – 10 July 1997 / NIF RA, 11 July 1997 – 6 October 1999 / HD RA, 7 October 1999 – 6 March 2001 / HD RA, 7 March 2001 – 2 December 2003 / HD RA, 3 December 2003 – 28 June 2005 / HD RA, 29 June 2005 – 25 October 2009 / HD e. Overseas Service / Combat Service: Korea, Philippines, SWA / Afghanistan (12 January 2003 – 10 September 2003); Iraq (13 January 2004 – 16 April 2004; 8 August 2006 – 25 October 2007) f. Awards and Decorations: ACM-2CS, PH, ARCOM-3, AAM-3, AGCM-4, NDSM, GWOTEM, GWOTSM-2, KDSM, HSM, ICM-2CS, NCOPDR-2, ASR, OSR, CIB, EIB g. Performance Ratings: 23 January 2008 – 23 October 2011 / Among the Best 24 October 2011 – 23 October 2012 / Fully Capable 24 October 2012 – 23 October 2013 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Developmental Counseling Form, dated 7 May 2012, for the allegation of domestic violence. Leland Police Department Felony Prosecution Report, dated 8 June 2012, reflects the applicant was under investigation for assault by strangulation. Investigation revealed on 4 May 2012, a police officer from the Leland Police Department was dispatched in reference to a domestic disturbance. The officer made contact with the applicant’s spouse who reported during an argument with the applicant, the applicant threw the spouse to the ground and choked the spouse until the spouse lost consciousness. The spouse’s children helped the spouse to the spouse’s feet. The spouse told the applicant to leave the home, which the applicant did leave. A warrant was issued for the applicant’s arrest. Military Police Report, dated 13 July 2012, reflects the applicant was apprehended for: OFA – True Bill of Indictment, Assault (off post) and Spouse Abuse Civilian [Person] Victim, Article 134, UCMJ (off post). Investigation revealed the applicant was arrested by the Fayetteville Police Department on an order of arrest for True Bill of Indictment, Brunswick County District Court on charges of assault on a [person] and assault inflicting serious injury minor present. The applicant appeared before a magistrate and provided a court date of 7 August 2012. State of North Carolina court documents, dated 12 March 2013, reflect the applicant pled guilty pursuant to deferred prosecution. The applicant stated in an Admission to offense Assault by Strangulation, “I grabbed my [spouse] by the neck and threw [spouse] to the ground.” The Superior Court dismissed pursuant to plea arrangement: Count I, Assault on [Person], and Count II, Assault Inflicting Serious Injury Minor Present. The applicant was sentenced to unsupervised probation for 12 months. The applicant was required to complete domestic violence counseling by the applicant’s employer; complete substance abuse assessment; comply with all recommendations; and complete all DVPO classes satisfactorily. General Officer Memorandum Of Reprimand, dated 18 April 2013, reflects: The applicant assaulted the applicant’s spouse. The applicant’s spouse reported to police the applicant threw the spouse on the ground and choked the spouse until the spouse lost consciousness in the presence of a minor child. A warrant was issued for the applicant’s arrest. The applicant later returned and was arrested. On 8 January 2013, the applicant made a false statement to the applicant’s entire chain of command during an open door session in the applicant’s response to the brigade letter of reprimand by stating the applicant defended own self from the spouse’s slaps and attempted to restrain the spouse’s hands which brought the spouse to the ground. The applicant denied assaulting the spouse. On 12 March 2013, in civilian court, the applicant entered a plea of guilty and admitted to grabbing the spouse by the neck and throwing the spouse on the ground. The applicant’s statements both orally and in writing to the chain of command were totally false. The applicant submitted a rebuttal statement, explaining why the applicant was innocent. Formal AR 15-6 Investigation Findings and Recommendations, dated 5 September 2013, reflects the investigation officer found the applicant: The allegation the applicant on 4 May 2012, grabbed C. G., the applicant’s spouse, by the neck and threw the spouse to the ground was supported by the preponderance of the evidence. The allegation the applicant made a false official statement to COL J. B., CSM T. D., LTC D. L., CSM G. T., MAJ D. F., and 1SG A. W. was not supported by a preponderance of the evidence. The administrative separation board recommended a discharge with a characterization of service of honorable. The applicant provided a State of North Carolina Petition and Order of Expunction, dated 16 March 2015, reflecting the applicant, through the attorney, petitioned the court for the charges of assault on person / assault inflicting serious injury minor present, and assault by strangulation, offense committed on 4 May 2012, to be expunged. On 28 September 2015, the courts granted the petition. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: A copy of Department of Veterans Affairs (VA) letter, dated 6 April 2016, reflecting the applicant was rated 90 percent service-connected disabled. The letter does not reveal condition(s) rated. A copy of Department of Veterans Affairs (VA) letter, pages 4 through 10, date unavailable, reflecting the applicant was rated, 40 percent service-connected disabled for TBI, with vitreous floaters and photophobia both eyes, and 70 percent for PTSD. (2) AMHRR Listed: Informal AR 15-6 Investigation Findings and Recommendations, dated 9 July 2012, reflects: The investigation officer (IO) found applicant assaulted the spouse on the evening of 4 May 2012. As an extenuating factor, the applicant suffered from multiple TBI incidents and had been treated by the Womack Army Medical Center (WAMC) TBI clinic. The applicant served honorably for 15 years before the violent incident occurred. There was a possible link between the applicant’s TBIs and the recent actions. The IO recommended possible bar to reenlistment and separation; training; counseling; required treatment by the Family Advocacy Program Case Review Committee; and not to remain within the Civil Affairs community. Memorandum, subject: Administrative Separation Board Referral, Ch 14-12c, Commission of a Serious Offense [Applicant], dated 16 May 2013, reflects the Staff Judge Advocate indicated the applicant medical / mental considerations were TBI; treated for PTSD in 2006; and adjustment disorder. The applicant submits a memorandum explaining why the applicant pled guilty in civilian court when in fact the applicant was innocent. The applicant’s spouse has since recanted the spouse’s statement the applicant assaulted the spouse. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 149; DD Form 293; VA letter; and State of North Carolina Petition and Order of Expunction. 6. POST SERVICE ACCOMPLISHMENTS: The applicant works with active duty military helping to train the force. 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) 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. (4) 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. (5) 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 a narrative reason change. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with an honorable discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Misconduct (Serious Offense),” and the separation code is “JKQ.” Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214, and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635- 5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends the VA rated the applicant 40 percent service-connected disabled for a TBI and 70 percent for PTSD. The applicant provided medical documents indicating the VA rated the applicant 40 percent service-connected disabled for TBI and 70 percent for PTSD. The applicant’s AMHRR contains a memorandum from the SJA which indicated the applicant had a TBI, adjustment disorder, and was treated for PTSD in 2006. The AMHRR is void of a mental status evaluation. The applicant contends the applicant’s case was dismissed and expunged prior to separation, but the applicant’s immediate commander pursued a discharge. The applicant’s AMHRR reflects the applicant’s case was dismissed per compliance with deferred prosecution prior to separation and the applicant’s spouse recanted the statement the applicant assaulted the spouse. The applicant presented court documents reflecting the applicant’s charges were expunged after the applicant was separated from the service. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the applicant’s provider did not pursue an MEB because of the political climate. The applicant did not provide any evidence to support the contention. The AMHRR is void of any evidence of a recommendation for an MEB. Army Regulation 635-200, in pertinent part, stipulates commanders will not separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The applicant contends good service, including combat tours. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends working with the active duty military helping to train the force. 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: PTSD and TBI. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant is service connected for both PTSD and 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 has evidence of the potentially mitigating conditions TBI and PTSD at the time of service. Neither PTSD nor TBI of the nature sustained by the applicant would mitigate the act of domestic violence in applicant’s records; per records, false statement charge was not supported by preponderance of the evidence. Furthermore, applicant’s history of TBI was already referenced during proceedings as a potentially mitigating circumstance for consideration. The advisor was unable to locate any information suggesting that applicant was deemed unfit per medical retention standards and/or recommended for an MEB. Current characterization of discharge and narrative reason appear proper and equitable from psychiatric perspective. Ultimately it appears the applicant’s request is based at least in part on other issues of propriety and equity rather than purely psychiatric mitigation, given the nature of applicant’s legal history and ultimate expungement of the assault charge. (4) Does the condition or experience outweigh the discharge? N/A. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention and determined the applicant’s narrative reason for discharge is appropriate as the applicant has no experiences that would excuse the misconduct in addition, applicant’s PTSD and TBI does not mitigate or excuse the applicant’s domestic assault against the spouse and making a false official statement to multiple Officer’s and NCOs. (2) The applicant contends the VA rated the applicant 40 percent service-connected disabled for a TBI and 70 percent for PTSD. The Board considered this contention and determined applicant’s service connections for PTSD and TBI do not excuse or mitigate domestic assault against the spouse and making a false official statement to multiple Officer’s and NCOs as there is no nexus between the basis for separation and applicant’s PTSD and TBI diagnoses. (3) The applicant contends the applicant’s case was dismissed and expunged prior to separation, but the applicant’s immediate commander pursued a discharge. The Board considered this contention and determined the applicant’s case was dismissed and expunged on 28 September 2015, which occurred after applicant was discharged on 3 April 2014. (4) The applicant contends the applicant’s provider did not pursue an MEB because of the political climate. The Board considered this contention and determined there is insufficient evidence in the file to support applicant was considered for an MEB nor was there evidence of a political climate that may have persuaded any provider to not pursue an MEB. The applicant was properly and equitably discharged. (5) The applicant contends good service, including combat tours. The Board considered this contention and determined by committing domestic assault against the spouse and making a false official statement to multiple Officer’s and NCOs the misconduct, the applicant diminished the quality of service below that meriting further upgrade. The discharge is proper and equitable. (6) The applicant contends working with the active-duty military helping to train the force. The Board considered this contention and determined applicant’s work with the active-duty military helping to train the force does not outweigh the applicant’s basis for separation domestic assault against the spouse and making a false official statement to multiple Officer’s and NCOs. 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 characterization of service due to it already being Honorable. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code, as 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 AR20210001967 1