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, the discharge was based on assumptions and false statements by the investigators and other parties involved. The applicant believes everything was biased and one sided. There was no evidence or any confessions on the applicant’s behalf which the applicant conducted the actions. Under the advisory of the 1SG, the applicant was told to admit to the actions to remain in the Army. b. Board Type and Decision: In a records review conducted on 4 April 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: 18 June 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 1 April 2015 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 10 November 2014, the applicant unlawfully pushed J. H. into an air condition unit with the hands causing J. H. to fall to the ground; On or about 10 November 2014, the applicant committed an assault upon J. H. by striking J. H. in the face with a closed fist and did thereby intentionally inflict grievous bodily harm upon J. H. to wit: a bleeding swollen upper lip; On or about 10 November 2014, the applicant committed an assault upon J. H. by choking J. H. with the hands and forcibly striking J. H. head on the ground and did thereby intentionally inflict grievous bodily harm upon J. H., to wit: bruising around J. H. neck; and, On or about 19 January 2015, the applicant unlawfully assaulted J. H. by grabbed both arms and threw J. H. on the bed, placed the right forearm on J. H. throat and placed the left hand over J. H. mouth and nose, pushed J. H. against the air condition unit and threw J. H. on the bed. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 2 April 2015 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 20 April 2015 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 October 2013 / 3 years, 23 weeks b. Age at Enlistment / Education / GT Score: 22 / some college / 95 c. Highest Grade Achieved / MOS / Total Service: E-3 / 92F10, Petroleum Supply Specialist / 1 year, 8 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, dated 10 November 2014, reflects the applicant was apprehended for Criminal Obstruction of Breathing or Blood Circulation Art 134, UCMJ IAW NYPL 121.11(A) (On Post); Aggravated Assault Art 128 UCMJ (On Post); Communicating a Threat Art 134, UCMJ (On Post); Wrongful Damage to Private Property Art 109 (On Post); and Domestic Disturbance (On Post). Military Protective Order, dated 12 November 2014, reflects the applicant was ordered not to have contact with the spouse without the presence of an NCO or Officer to ensure safety of the Soldier and spouse. CG Article 15, dated 13 January 2015, for unlawfully push J. H. on or about 10 November 2014; commit an assault upon J. H on or about 10 November 2014; and commit an assault upon J.H on or about 10 November 2014. The punishment consisted of forfeiture of $425 pay. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Mental Status Evaluation, dated 2 February 2015, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. 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 applicant was diagnosed with Axis I: Partner Relational Problem. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and 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 the discharge was based on assumptions and false statements by the investigators and others. The 1SG advised the applicant to admit to the action to remain in the Army. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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: Major Depressive Disorder and Generalized Anxiety Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found evidence of depression and anxiety as evidenced by applicant’s service connected conditions. (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's assertion of mental health conditions alone is worthy of consideration by the Board, and there is evidence to support presence of potentially mitigating depression (Major Depressive Disorder) and anxiety (Generalized Anxiety Disorder). However, neither of these conditions impair one’s ability to distinguish right from wrong and adhere to the right, therefore it is the agency behavioral health advisor's opinion that there is no nexus between these conditions and the multiple assaultive behaviors leading to discharge. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board considered the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant’s Major Depressive Disorder and Generalized Anxiety Disorder outweighed the basis for applicant’s separation – aggravated assault of the applicant’s spouse – for the aforementioned reason(s). b. Response to Contention(s): The applicant contends the discharge was based on assumptions and false statements by the investigators and others. The 1SG advised the applicant to admit to the action to remain in the Army. The Board considered this contention and determined there is insufficient evidence in the file to support this contention, nor does this contention outweigh the applicant’s misconduct of aggravated assault of the spouse. The applicant was properly and equitably discharged. 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, the applicant’s Major Depressive Disorder and Generalized Anxiety Disorder did not excuse or mitigate the offenses of aggravated assault of the spouse. The applicant’s misconduct diminished the applicant’s quality of service below that level of sufficiently meritorious service to warrant an HD. (2) 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. (3) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, as the reason the applicant was discharged was both proper and equitable. (4) 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 AR20210002098 1