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 applicant was wrongfully discharged for criminal offenses wherein the applicant was found not guilty. The deposition from the court clearly states the applicant was convicted of one offense and the punishment was only a $200 fine. The applicant received no jail time, no probation. The applicant had been suffering from combat-related post-traumatic stress disorder (PTSD) since 2006 and was recently diagnosed by the Veteran Affairs (VA). b. Board Type and Decision: In a records review conducted on 26 August 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 (Civil Conviction) / AR 635-200, Chapter 14, Sec II / JKB / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 18 February 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 26 January 2010 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was convicted of assaulting the applicant’s spouse. The applicant endangered the welfare of the applicant’s child, by engaging in a physical altercation with the spouse while the spouse was holding the child. The applicant committed criminal trespass in the second degree by unlawfully remaining at the residence of the spouse against the spouse’s wishes. The applicant, while engaging in a physical altercation with the spouse, recklessly caused the child to strike their head on a wall numerous times. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 26 January 2010 (5) Administrative Separation Board: On 26 January 2010, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 10 February 2010 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 February 2009 / 5 years b. Age at Enlistment / Education / GT Score: 20 / GED / 103 c. Highest Grade Achieved / MOS / Total Service: E-4 / 15B10, Aircraft Powerplant Repairer / 4 years, 1 month, 20 days d. Prior Service / Characterizations: RA, 29 December 2005 – 11 February 2009 / HD e. Overseas Service / Combat Service: SWA / Iraq (7 May 2007 – 3 July 2008) f. Awards and Decorations: ARCOM, AGCM, NDSM, ICM-CS, ASR, OSR, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Misdemeanor Charge Sheet, dated 1 December 2009, reflects the applicant was accused of four misdemeanor charges: endangering the welfare of a child; criminal trespass in the second degree; reckless endangerment in the second degree; assault in the third degree. Certificate of Disposition, dated 14 December 2009, reflects the applicant was only found guilty of assault in the 3rd degree. The applicant was fined $255. Developmental Counseling Forms, for various acts of misconduct. FG Article 15, dated 22 January 2010, for willfully disobeying a lawful order (between 8 and 10 December 2009) from a noncommissioned officer; disobeying a no-contact order issued from an officer (23 December 2009), and wrongfully contacting PFC H., not the applicant’s spouse; wrongfully cohabit with PFC H., not the applicant’s spouse (23 November 2009 and 18 December 2009). The punishment consisted of a reduction to E-1, forfeiture of $724 pay per month for two months (suspended), 45 days of extra duty and restriction, and an oral reprimand. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of a VA disability rating decision, dated 4 March 2017, reflecting the applicant was rated 0 percent disability for combat PTSD (service-connected). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; VA rating printout; Veterans Evaluation Service Appointment Letter; Certificate of Disposition; self-authored statement asserting PTSD since 2006. 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) Section II, Paragraph 14-5, prescribes conditions which subject a Soldier to discharge and reduction in grade. A Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present. This includes similar adjudication in juvenile proceedings: 1) A punitive discharge authorized for the same or a closely related offense under the MCM 2002, as amended; 2) The sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. Adjudication in juvenile proceedings includes adjudication as a juvenile delinquent, wayward minor, or youthful offender; Initiation of separation action is not mandatory. Although the conditions established in a (1) or (2), above, are present, the immediate commander must also consider whether the specific circumstances of the offense warrant separation. If the immediate commander initiates separation action, the case will be processed through the chain of command to the separation authority for appropriate action. A Soldier convicted by a civil court or adjudged a juvenile offender by a civil court will be reduced or considered for reduction. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKB” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, section II, misconduct (civil conviction). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable 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 applicant was wrongfully discharged for criminal offenses the applicant was founded not guilty. Army Regulation 635-200, paragraph 14-5, stipulates a Soldier may be separated when initially convicted by civil authorities, or when action is taken tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for six months or more, without regard to suspension or probation. The Army Military Human Resource Record (AMHRR) reflects that the applicant was charged of four offenses: Assault in third degree in violation of New York Public Law § 120.00 01; Endangering the welfare of a child in violation of New York Public Law § 260.10 01; Criminal Trespass in the Second Degree in violation of New York Public Law § 140.14; and Reckless Endangerment in the Second Degree in violation of New York Public Law § 120.20. The AMHRR also reflects that the applicant was convicted of one of the four offenses, Assault in the third degree and fined $200. The maximum punishment for Assault in third degree in violation of New York Public Law § 120.00 0 is one year and a three-year probationary term. The AMHRR also includes the applicant’s Election of Rights memorandum signed by the applicant and the applicant’s Trial Defense Counsel on 26 January 2010, which unconditionally waived the applicant’s right to appear before an administrative separation board. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends suffering from combat post-traumatic stress disorder (PTSD) since 2006, and was recently diagnosed by the Veteran Affairs (VA). The applicant provided a copy of a VA disability rating decision, dated 4 March 2017, reflecting the applicant was rated 0 percent disability for combat PTSD (service-connected). The applicant’s AMHRR contains no documentation of behavioral health diagnosis. The AMHRR is void of a Mental Status Evaluation. 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 the following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: Combat-related PTSD. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found evidence that the applicant’s PTSD existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined the applicant’s PTSD does not mitigate the applicant’s offense of assault as there is no natural sequelae between PTSD and the assault of the applicant’s spouse. (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 applicant’s PTSD did not outweigh the applicant’s medically unmitigated civilian conviction of assaulting the applicant’s spouse and the additional misconduct considered by the Separation Authority for determining the applicant’s Under Other than Honorable characterization of service, including endangering the welfare of the applicant’s child by engaging in a physical altercation with the applicant’s spouse while the spouse was holding the applicant’s child during which the child’s head struck the wall numerous times, violating a no contact order, failure to pay child support, disobeying orders, making false official statement and a false report. b. Response to Contention(s): (1) The applicant contends the applicant was wrongfully discharged for criminal offenses the applicant was founded not guilty. The Board considered this contention and determined that, while the applicant’s separation notification included three offenses that the applicant was charged but not convicted, the applicant was properly discharge in accordance with paragraph 14-5 because the applicant conviction under New York State law for Assault in the third degree is tantamount MCM, Article 128, which authorizes a Bad Conduct or a Dishonorable Discharge and the applicant had the opportunity to consult with legal counsel prior to unconditionally waiving the applicant’s right to administrative separation board. Therefore, the applicant’s discharge is proper and equitable. (2) The applicant contends suffering from combat post-traumatic stress disorder (PTSD) since 2006, recently diagnosed by the Veteran Affairs (VA). The Board considered this contention and determined that the applicant’s PTSD does not outweigh the applicant’s medically unmitigated civilian conviction for Assault in the third degree as there is no nexus between PTSD and assault. The Board also considered the totality of the applicant’s record, including the applicant’s PTSD and determined a discharge upgrade is not warranted due to the seriousness of the applicant’s offense. 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, the applicant’s PTSD did not outweigh the applicant’s medically unmitigated civilian conviction for assaulting the applicant’s spouse. The Board considered the applicant’s contention that the applicant was wrongfully discharged for misconduct that the applicant was found not guilty by the civilian court and determined that, while the applicant’s separation notification included three offenses that the applicant was charged but not convicted, the applicant was properly discharge in accordance with paragraph 14-5 because the applicant conviction under New York State law for Assault in the third degree is tantamount MCM, Article 128, which authorizes a Bad Conduct or a Dishonorable Discharge. The Board also considered the totality of the applicant’s record, including the applicant’s PTSD and determined that a discharge upgrade was not warranted. 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 was proper and equitable as the applicant’s misconduct fell below that level of satisfactory service warranting a General Discharge or meritorious service warranted for an upgrade to Honorable Discharge. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, 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 AR20210002575 1