1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general (under honorable conditions). The applicant, through counsel, requests an upgrade to honorable and a change to the RE code and narrative reason. The applicant seeks relief contending, in effect, the discharge was both erroneous and unjust because there was no commission of an offense to warrant the type of discharge given; the criteria for the type of discharge received was not met; and, the Army did not factor in the applicant's in-service diagnosis of PTSD, while determining the characterization. The applicant contends that the applicant's discharge stemmed from a situation refuted by both parties involved, and, was driven by a violation of confidentiality by medical professionals, charged with helping the applicant cope with the effects of PTSD. The applicant claims that the discharge was motivated by the required drawdown of forces. The applicant claims the applicant was charged with domestic abuse and that the after the charges were dismissed, the Army discharged the applicant without a trial or hearing, based on one incident.. The applicant contends the applicant was discharged erroneously because the applicant was separated in accordance with Army Regulation 635-200, Paragraph 14-12c, which only applies if if the specific circumstances of the offense warrants separation and a punitive discharge is, or would be, authorized for the same or closely related offense under the MCM. The applicant's contends the applicant's charges for assault were dismissed after a plea of not guilty; therefore, according to law, the applicant committed no offense. The applicant also contends that the applicant was charged with assault and the evidence shows the alleged victimsuffered no bodily injury. The applicant states that under the Manual for Courts-Martial, an assault that does not result in bodily injury is identified as "Simple Assault" and the punishment does not include a discharge. The applicant states that notwithstanding the fact the applicant did not commit the offense charged, the maximum penalty for such an offense does not include a discharge. Therefore, AR 635-200, paragraph 14-12c did not apply. The applicant's claims that the in-service PTSD diagnosis was not considered as a factor during the applicant's discharge proceedings. The applicant contends he should be given liberal considerations in view of the Hagel Memo (2014), Carson Memo (2016), Kurta Memo (2017), and the Fairness for Veterans Act, 10 U.S.C., section 1553(d). In a records review conducted on 15 June 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, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 22 August 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 March 2009 / 6 years b. Age at Enlistment / Education / GT Score: 23 / GED / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 89B10, Ammunition Specialist / 6 years, 2 months, 8 days d. Prior Service / Characterizations: RA, 13 June 2007 - 27 March 2009 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (25 October 2010 - 24 October 2011); Iraq (2 October 2008 - 2 October 2009) f. Awards and Decorations: AAM-3, NATOMDL, AGCM, NDSM, ACM-2CS, GWOTSM, ICM-2CS, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Two Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Confined by Civil Authorities (CCA)," effective date 19 December 2012; and, From "Confined by Civil Authorities" to "Present for Duty," effective date 20 December 2012. The applicant provided a Trial Defense Service Memorandum, subject: Administrative Separation [Applicant], dated 16 May 2013, which reflects the applicant's military defense counsel requested the applicant be retained and given a rehabilitative transfer because the preponderance of the evidence did not support the allegation on 18 December 2012, the applicant choked Ms. A.M. and shoved Ms. A.M. several times. Dr. D.L. the reporting party, had not spoken with the applicant and was not present for any conversation between the applicant and the therapist. Orders 170-0034, dated 19 June 2013, reflect the applicant was to be reassigned to the U.S. Army Transition Point and discharged on 22 August 2013 from the Regular Army. The applicant's DD Form 214, which was authenticated by the applicant's signature, indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14- 12c, by reason of Misconduct (Serious Offense), with a characterization of service of general (under honorable conditions). The applicant provided Ms. A.M., victim, letter, which reflects Ms. A.M. admitted to lying about the incident on the night of 19 December 2012. Ms. A.M. indicated the applicant and Ms. A.M. only had a verbal disagreement, which was told to the officer, but when the officer disclosed what the therapist said, Ms. A.M. felt pressured to agree with the false statement made by the therapist. The applicant provided Congressional Research Service Report - "Army Drawdown and Restructuring: Background and Issues for Congress," dated 28 February 2014, which reflects the Army plans to reduce the Active Component Brigade Combat Teams (BCTs) from 45 to 33. Fort Carson, CO, 3rd Armored Brigade Combat Team, 4th Infantry Division was listed as one of the BCTs in the plans to be eliminated. i. Lost Time / Mode of Return: 2 days: (CCA, 19 December 2012 - 20 December 2012) / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: Department of Veterans Affairs (VA) Rating Decision, dated 17 March 2016, which reflects the applicant was rated 50 percent service- connected disability for Post-Traumatic Stress Disorder with Bipolar Disorder and Alcohol Use Disorder (claimed as anxiety, panic disorder, depressed mood disorder, adjustment disorder, and insomnia). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; Legal Brief with Exhibits 1 through 11; Ms. A.M. Statement; Memorial Health System letter - Ms. A.M.; VA Rating Decision; letter of support from Senator M.B.'s office; Congressional Research Service - "Army Drawdown and Restructuring: Background and Issues for Congress; "Stand-To" article - "Army Force Structure Changes"; "New York Times" article, "A Less Than Honorable Policy." 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 waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. 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's AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason of Misconduct (Serious Offense), with a characterization of service of General (Under Honorable Conditions). 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 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. 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." Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214 and dictates the entry of the 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 SPD code to be entered under this regulation. The applicant contends the reentry code should be changed. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-201, the applicant was appropriately assigned an RE code of "3." There is no basis upon which to grant a change to the reason or the RE code. An RE Code of "3" indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army's needs at the time and are required to process waivers of reentry eligibility (RE) codes if appropriate. The applicant contends the applicant's post-traumatic stress diagnosis was not considered a factor during the applicant's discharge or subsequent request for a discharge upgrade. The applicant provided a VA Rating Decision which reflects the applicant was rated 50 percent service-connected disability for Post-Traumatic Stress Disorder with Bipolar Disorder and Alcohol Use Disorder (claimed as anxiety, panic disorder, depressed mood disorder, adjustment disorder, and insomnia). The AMHRR is void of a mental status evaluation and contains no documentation to show the applicant was diagnosed with PTSD prior to the discharge. The applicant contends the allegation of misconduct, which led to the discharge from the Army, was an isolated incident. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends the discharge was improper because there was no commission of a serious offense to warrant the discharge given the charges for assault were dismissed after a plea of not guilty. The applicant contends the discharge was improper because the criteria for the type of discharge the applicant received did not meet the regulatory requirements of Army Regulation 14-12c because the "commission of a serious offense" must warrant separation and a punitive discharge for the same or closely related offenses under the MCM. The applicant contends that the offense of assault under the MCM requires the victim to suffer bodily injury, without bodily injury, the offense is a simple assault punishable by a maximum confinement for three months and forfeiture of two-thirds pay per month for three months. The applicant contends the applicant did not commit the offenses charged, and the maximum punishment for simple assault does not include a discharge making AR 635-200, para 14-12c not applicable. The applicant contends that discharge was inequitable because the offense of assault was refuted by both parties involved and the discharge was driven by a medical professional's violation of confidentially. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends that discharge was inequitable because the discharge was motivated by the required draw down of forces at the time. The applicant contends good service, including combat tours. The Board considered the service accomplishments and the quality of service. 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. Applicant Adjustment Disorder, Depression, Major Depression, and PTSD could mitigate the applicant's basis for separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor determined that the applicant's Adjustment Disorder, Depression, Major Depression and PTSD existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor, after applying liberal consideration, opined that the applicant's PTSD partially mitigates the applicant's FTR bases for separation as avoidance is part of the sequela of symptoms associated with PTSD. However, the Board's Medical Advisor concluded that there is no natural sequela between the applicant's BH conditions (Adjustment Disorder, Depression, Major Depression, and PTSD) and Domestic Assault. (4) Does the condition or experience outweigh the discharge? No. Despite the ARDB's application of liberal consideration, the Board concurred with the Board's Medical Advisor, a voting member, and determined that the applicant's PTSD does not outweigh the applicant's unmitigated misconduct (domestic assault). b. Response to Contentions: (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention during the proceedings and voted not to change the narrative reason. (2) The applicant contends the SPD should be changed. The Board considered this contention during the proceedings and voted not to change the SPD code. (3) The applicant contends the reentry code should be changed. The Board considered this contention during the proceedings and voted not to change the RE code. (4) The applicant contends being diagnosed with post-traumatic stress disorder with bipolar disorder and alcohol use disorder by the VA. The Board considered this contention and determined that applicant's PTSD does not outweigh the applicant's unmitigated basis for separation - domestic assault. Therefore, a discharge upgrade is not warranted based on this contention. (5) The applicant contends the allegation of misconduct, which led to the discharge from the Army, was an isolated incident. The Board considered this contention and determined that Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. Therefore, a discharge upgrade is not warranted based on this contention. (6) The applicant contends the discharge was erroneous because there was no commission of a serious offense; (7) The applicant contends the discharge was motivated by the Army's drawdown requirement. (8) The applicant contends the discharge was driven by a medical professional's violation of confidentially. The Board considered this contention and determined that there is no evidence that the Command acted in an arbitrary or capricious manner. Therefore, the discharge was proper and equitable. (9) The applicant contends good service, including combat tours. The Board considered this contention and 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 Domestic Assault and FTRs, 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 contentions 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 PTSD did not outweigh the unmitigated offenses of Domestic Assault. 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. (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 FTR - Failure to Report 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 AR20210002908 1