1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: Yes 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is under other than honorable conditions. The applicant, through counsel, requests an upgrade to honorable. The applicant seeks relief contending, in effect, the Honorable Board consider the facts and arguments presented, and respectfully requests a correction to the applicant’s military records to reflect, an honorable discharge; a narrative reason of separation of “miscellaneous” and a separation code which correlates with “miscellaneous”. The applicant admits there was an error in judgment regarding the altercation with the spouse in 2012. However, given the length of the applicant's Army career, the overall quality of career, the impressive list of medals which the applicant received, and the applicant’s extended amount of combat time while serving as a Soldier, the totality of the circumstances warrants the requested changes to the applicant’s military discharge. Additionally, considering the standards laid out in the Kurta Memorandum, and the applicant’s clear signs and evidence of behavioral health issues, the applicant is entitled to a renewed examination of this application. b. Board Type and Decision: In a records review conducted on 26 January 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 / Under Other Than Honorable Conditions b. Date of Discharge: 5 March 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 8 December 2012 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant committed domestic violence in May of 2012, by committing assault and battery on the spouse; also, in May of 2012, the applicant made a false official statement regarding the domestic violence incident. The applicant was convicted for both acts by summary court martial. Furthermore, the applicant attempted to procure the services of a prostitute in January of 2012, for which the applicant was reprimanded. (3) Recommended Characterization: The unit commander recommended a general (under honorable conditions). The intermediate commanders recommended under other than honorable conditions. (4) Legal Consultation Date: 10 December 2012 (5) Administrative Separation Board: On 2 October 2012, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon receiving a characterization of service no less favorable than under other than honorable conditions. However, the applicant requested the command recommend to the separation authority a characterization of service no less favorable than general (under honorable conditions) discharge or better. On 2 October 2012, the applicant offered to plead guilty and had been advised by consulting counsel that pleading guilty to the Charge and Specification set forth in the submitted Offer to Plead Guilty (OTP) could and would be used as basis for any consideration and action to separate the applicant from the United States Army, for the commission of a serious offense under AR 635-200, Chapter 14-12c, and its effects of the rights available to the applicant and of the effect of any action taken by the applicant in waiving rights. The applicant unconditionally waived consideration of the case before an administrative separation board. The applicant understood as the result of an issuance of a discharge under other than honorable conditions the applicant may be ineligible for many, or all benefits a veteran under both Federal and State laws. On 9 January 2013, the applicant’s conditional waiver was denied. (6) Separation Decision Date / Characterization: 9 January 2013 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 February 2008 / 6 years b. Age at Enlistment / Education / GT Score: 35 / some college / 99 c. Highest Grade Achieved / MOS / Total Service: E-5 / 92A20, Automated Logistical Specialist / 12 years, 2 months, 7 days d. Prior Service / Characterizations: ARNG, 29 December 2000 – 6 November 2001 / HD IADT, 26 February 2001 – 22 August 2001 / UNC (Concurrent Service) RA, 7 November 2001 – 22 December 2003 / HD RA, 23 December 2003 – 7 February 2008 / HD e. Overseas Service / Combat Service: Korea, SWA / Afghanistan (5 August 2009 – 14 May 2010; Iraq 8 September 2003 – 30 September 2003; 16 May 2007 – 21 July 2008; Kuwait, 30 September 2012 – 2 March 2013) f. Awards and Decorations: ACM-CS, ICM-2CS, ARCOM-5, AAM-3, MUC, VUA, AGCM-3, NDSM, GWOTEM, GWOTSM, KDSM, NCOPDR-2, ASR, OSR-4, NATOMDL g. Performance Ratings: 1 November 2007 – 28 June 2010 / Among the Best 29 June 2010 – 3 December 2010 / Among the Best 4 December 2010 – 29 April 2011 / Fully Capable 30 April 2011 – 1 November 2011 / Fully Capable 8 November 2011 – 30 July 2012 / Among the Best h. Disciplinary Action(s) / Evidentiary Record: Charge Sheet, dated 21 September 2012, reflects the applicant was charged with: Charge I: violation of the UCMJ, Article 107: Specifications 1 and 2: with intent to deceive between on or about 26 May 2012, and 31 May 2012, make two false official statements. Charge II: violation of the UCMJ, Article 128: Specification 1: on or about 26 May 2012, unlawfully strike C., in the face with fist. Specification 2: between 1 January 2012, and 26 May 2012, assault C., by slamming shut a door on the legs. Record of Trial by Summary Court-Martial, reflects the applicant was charged with: Two specifications of violation of Article 121: Plea Guilty Finding Guilty. Two specifications of violation of Article 128: Plea Guilty Finding Guilty. The sentenced adjudged: Reduction to E-4; Forfeiture $1,575; restriction for two months. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 6 December 2012, 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 was diagnosed with: Adjustment Disorder with depressed and anxious mood, Alcohol Abuse, in remission. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Attorney’s brief and exhibits 1 through 18. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has successfully completed the C.R. England Driver Training Program and obtained Commercial Driver's License to become a professional truck driver. 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) Paragraph 3-7c states Under Other Than Honorable Conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) 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. (6) 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. (7) 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 waiverable and nonwaiverable 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 waiverable. 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 record of service, 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 a under other than honorable conditions 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 separation code (SPD) should be changed. Separation codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. The SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations the SPD code specified by Army Regulations for a discharge under Chapter 14, paragraph 14-12c, is “JKQ.” The applicant contends behavioral health issues were not properly considered. The applicant’s Army Military Human Resource Record contains documentation which supports a diagnosis of in-service adjustment disorder with depressed and anxious mood, Alcohol Abuse, in remission. The record shows the applicant underwent a mental status evaluation (MSE) on 6 December 2012, which indicates the applicant was mentally responsible and was able to recognize right from wrong. The MSE was considered by the separation authority. The applicant contends the command made a material error of discretion by discharging the applicant with an other than honorable characterization of service. The applicant has been advised by consulting counsel that pleading guilty to the Charge and Specification set forth in the submitted Offer to Plead Guilty (OTP) could and would be used as basis for any consideration and action to separate the applicant from the United States Army, for the commission of a serious offense under AR 635-200, Chapter 14-12c, and its effects of the rights available to the applicant and of the effect of any action taken by the applicant in waiving rights. The applicant understands as the result of an issuance of a discharge under other than honorable conditions the applicant may be ineligible for many, or all benefits a veteran under both Federal and State laws. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service, including three 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 successfully completing the C.R. England Driver Training Program on 8 January 2014 and obtained Commercial Driver’s License to become a professional truck driver. 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. The third-party statement provided with the application speaks highly of the applicant. It recognizes the applicant’s good conduct prior to joining the Army and during. 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: Adjustment Disorder, Anxiety, Dysthymic 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, Anxiety, and Dysthymic Disorder. (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, Anxiety, and Dysthymic Disorder. However, there is no natural sequela between any of these BH conditions and perpetrating domestic violence, making a false official statement, or attempting to procure the services of a prostitute, so there is no medical mitigation. (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, Anxiety, and Dysthymic Disorder outweighed the basis for applicant’s separation – domestic violence, false official statement, and solicitation of a prostitute – for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge and corresponding SPD code needs changed. The Board considered this contention and determined the applicant’s the available evidence did not support a conclusion that the applicant’s Adjustment Disorder, Anxiety, and Dysthymic Disorder outweighed the basis for applicant’s separation. After considering the totality of the evidence, the Board determined the discharge was proper and equitable. (2) The applicant contends behavioral health issues. The Board considered this contention and determined the available evidence did not support a conclusion that the applicant’s Adjustment Disorder, Anxiety, and Dysthymic Disorder outweighed the basis for applicant’s separation. (3) The applicant contends good service, including three combat tours. The Board considered the totality of the applicant’s service record, but determined the applicant’s discharge was appropriate because the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the misconduct of domestic violence, false official statement, and solicitation of a prostitute, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (4) The applicant contends successfully completing the C.R. England Driver Training Program on 8 January 2014 and obtained Commercial Driver’s License to become a professional truck driver. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge must be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings. 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. In this case, the Board considered this contention and determined that the applicant’s post-service conduct does not outweigh the applicant’s basis for separation. 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 available evidence did not support a conclusion that the applicant’s Adjustment Disorder, Anxiety, and Dysthymic Disorder outweighed the basis for applicant’s separation – domestic violence, false official statement, and solicitation of a prostitute. 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 UOTH discharge was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to HD. (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 AR20210002463 1