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 under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the discharge should be upgraded because the applicant defended oneself in a bar fight which was initiated because of racism against African Americans. The applicant was a knowledgeable Soldier and NCO, who dedicated a career to training and preparing Soldiers for combat. b. Board Type and Decision: In a records review conducted on 22 September 2022, 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-4 / Under Other Than Honorable Conditions b. Date of Discharge: 11 July 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 28 January 2013 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant unlawfully struck SGT M., on the head with a glass beer mug. (3) Recommended Characterization: The unit and intermediate commanders recommended a General (Under Honorable Conditions) discharge. (4) Legal Consultation Date: 7 February 2013 (5) Administrative Separation Board: On18 April 2013, the applicant was notified to appear before an administrative separation board and advised of rights. On 7 February 2013, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon receiving a characterization of service no less favorable than honorable discharge. On 16 April 2013, the applicant’s conditional waiver was denied. On 3 May 2013, the administrative separation board convened, and the applicant appeared with counsel. The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions. On 3 May 2013, the separation authority approved the findings and recommendations of the administrative separation board. (6) Separation Decision Date / Characterization: 14 June 2013 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 January 2011 / 3 years b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 111 c. Highest Grade Achieved / MOS / Total Service: E-5 / 11C10, Indirect Fire Infantry / 11 years, 1 day d. Prior Service / Characterizations: ARNG, 9 October 2001 – 10 July 2002 / HD ARNG, 11 July 2002 – 7 June 2003 / NA IADT, 8 June 2003 – 28 October 2003 / HD ARNG, 29 October 2003 – 2 January 2005 / NA AD, 3 January 2005 – 15 May 2006 / HD ARNG, 16 May 2006 – 21 June 2007 / HD RA, 22 June 2007 – 11 January 2011 / HD e. Overseas Service / Combat Service: SWA / Iraq and Kuwait (15 May 2005 – 19 April 2006) f. Awards and Decorations: ICM-2CS, ARCOM, AAM-2, AGCM, NDSM, GWOTSM, NCOPDR, OSR, AFRMMD, ASR g. Performance Ratings: 15 February 2012 – 5 April 2012 / Marginal h. Disciplinary Action(s) / Evidentiary Record: General Officer of Memorandum of Reprimand, dated 10 July 2008, reflects authorities in Richmond County, Georgia, apprehended the applicant for operating a motor vehicle while apparently under the influence of alcohol on 15 June 2008. A deputy of the Richmond County Sheriff’s Department observed the applicant weaving in and out of traffic and crossing over the roadway center and fog lines while traveling at a high rate of speed. Upon initiating a traffic stop and contacting the applicant, the deputy detected the odor of an alcoholic beverage emitting from the applicant. The deputy administered a series of field sobriety tests, which the applicant failed. The applicant was advised of the Georgia Implied Consent Notice and then taken to the Richmond County Jail where the applicant refused to consent to a lawfully requested chemical test to determine blood alcohol content. FG Article 15, dated 16 May 2012, for on or about 31 March 2012, unlawfully strike SGT M., on the head with a glass beer mug. The punishment consisted of a reduction to E-4; forfeiture of $1,181 pay per month for two months; extra duty; restriction for 45 days and oral reprimand. Military Police Report, dated 6 March 2013, reflects the applicant was apprehended for: Strangulation 2nd degree; Endangering the welfare of child; Criminal possession of a weapon 4th degree; Criminal Mischief 4th Degree; Assault 2nd degree; Domestic Disturbance (civil) (off post). i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 4 December 2012, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with: Adjustment Disorder with Depressed Mood and Antisocial Personality Disorder. 5. APPLICANT-PROVIDED EVIDENCE: Online application. 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) 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaivable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant’s 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 general (under 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 defending oneself in a bar fight which was initiated because of racism against African Americans. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service, including a combat tour. 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 found that the applicant has the following potentially mitigating diagnoses/experiences: TBI, Chronic Adjustment Disorder, Depression, and PTSD. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant was diagnosed in service with an TBI, Chronic Adjustment Disorder, Depression, and PTSD. Applicant is also service connected by the VA for Chronic Adjustment Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board Medical Advisor applied liberal consideration and opined that the applicant’s PTSD, TBI, Chronic Adjustment Disorder, and Depression do not mitigate the applicant’s assault offense as there is no natural sequela between these conditions and assaulting a person with a glass container during a bar fight. (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 TBI, Chronic Adjustment Disorder, Depression, and PTSD outweighed the medically unmitigated basis for applicant’s separation – assault. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention and determined that the applicant’s narrative reason is appropriate as the applicant was discharged for serious misconduct in accordance with AR 635- 200, Chapter 14-12c. (2) The applicant contends defending oneself in a bar fight which was initiated because of racism against African Americans. The Board considered this contention and determined that there is insufficient evidence in the applicant’s official record or provided by the applicant to support this claim. The Board determined the applicant was properly and equitably discharged. (3) The applicant contends good service, including a combat tour. 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. The applicant’s misconduct brought discredit on the Army, and was prejudicial to good order and discipline. By assaulting another person, the applicant diminished the quality of service below that meriting an honorable discharge at the time of 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 applicant’s TBI, Chronic Adjustment Disorder, Depression, and PTSD outweighed the medically unmitigated basis for applicant’s separation – assault. The Board also considered the applicant’s contention that the applicant’s misconduct resulted from self-defense and found insufficient evidence to warrant a discharge upgrade. Finally, the Board considered the totality of the applicant’s record, including the applicant’s good service and behavioral health conditions but determined that a discharge upgrade is not warranted as stated in paragraph 9b, above. 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 Under Other Than Honorable Conditions Discharge was proper and equitable as the applicant’s misconduct fell below that level of satisfactory service warranted for an upgrade to General Discharge or 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, 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 AR20210002537 1