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 under other than honorable conditions. The applicant, through counsel, requests an upgrade to honorable, a separation code (SPD) change, a narrative reason, and a reentry eligibility (RE) code change. The applicant seeks relief contending, in effect, the applicant believes deployment-related post- traumatic stress disorder (PTSD) and traumatic brain injury (TBI) affected behavior resulting in separation. The administrative separation process improperly failed to consider the applicant's extenuating circumstances and post-service accomplishments. The application has multiple mental health professionals, including Department of Veterans Affairs (VA), and have diagnosed the applicant with PTSD and TBI and have linked diagnosis to deployment in a contingency operation. In a records review conducted on 31 May 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: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 12 September 2014 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): General Court-Martial Order Number 19, dated 26 November 2014, shows the applicant was charged with: Charge I: Violating Article 128, UCMJ: Specification 1: On 1 September 2013 and 30 September 2013, unlawfully grab M.M. by the arm and drag M.M. toward the bathroom. Specification 2: On 1 November 2013 and 30 November 2013, unlawfully grab M.M. by the shoulders, shake, pin to couch, and punch in the head with fist. Specification 3: On 1 February 2014 and 28 February 2014, unlawfully grab M.M. by the head and press thumbs against M.M. eyes. Specification 4: On 21 April 2014, unlawfully strike M.M. in the side of the face with arm, grab back of neck with hand, and pull M.M. Specification 5: On 15 May 2014, unlawfully grab M.M. by the shoulders and shake, grab by the back of the neck, and push face into a door; commit an assault upon M.M. by striking M. M. to produce death or grievous bodily harm, to wit: striking in throat; unlawfully shove M.M. down onto a mattress with hands. Charge II: Violating Article 134, UCMJ: Specification 1: on 1 September 2013 and 30 September 2013, wrongfully communicate to M. M. a threat to kill M. M. by putting M. M. in a bathtub with a toaster. Specification 2: On 1 October 2013 and 31 October 2013, disorderly, pointed a handgun to head in the presence of M.M. and said, "If you leave me, I will kill myself." Specification 3: On 1 February 2014 and 28 February 2014, wrongfully communicate to M.M. a threat to injure by hitting M. M. in the head with a hammer. Specification 4: On 21 April 2013, willfully and wrongfully confine and hold M.M., a person not a minor, against will. Specification 5: On 1 February 2014 and 15 May 2014, wrongfully communicate to M.M. a threat to kill M. M., if M. M. ever left; on 15 May 2014, a threat to injure by shoving a broom handle into M. M. vulva and anus. Charge III: Violating Article 90, UCMJ, three specifications: On 17 May 2014, 21 May 2014 and 30 May 2014, willfully disobey a lawful command from a commissioned officer. The accused having been arraigned, the proceedings were terminated on 2 September 2014. The accused's request for discharge pursuant to the provisions of Chapter 10, Army Regulation 635-200, was approved on 2 September 2014, for issuance of a discharge under other than honorable conditions. The Charges and Specifications are dismissed. All rights, privileges, and property of which the accused has been deprived by virtue of these proceedings will be restored. (2) Legal Consultation Date: NIF (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 2 September 2014 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 7 March 2011 / 2 years, 7 months, 16 weeks b. Age at Enlistment / Education / GT Score: 24 / HS Graduate / 102 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 6 months, 6 days d. Prior Service / Characterizations: RA, 7 March 2011 - 4 March 2013 / HD e. Overseas Service / Combat Service: Hawaii, SWA / Afghanistan (18 December 2012 - 23 August 2013) f. Awards and Decorations: ARCOM, AAM, AGCM, NDSM, ACM-CS, GWOTSM, ASR, OSR, NATOMDL, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: General Court-Martial Order as described in previous paragraph 3c. 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 January 2017, reflecting the applicant was rated 100 percent disability for PTSD with TBI, (also claimed as major depressive, intermittent explosive, adjustment and anxiety disorder with mixed disturbance of emotions and conduct). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Legal Brief with all listed exhibits, (Supplemental Affidavit of J.M.H., Affidavit of A. M., ARBA, Kennedy notifications to J. H. M., Emails between ARBA and the Legal Services Center of Harvard Law School, VA, Letter to J. H. M., re: character of service determination, VA Rating Decision, Letter from M. H., LCSW, Manchester Vet Center); VA letter and VA Rating Decision; medical records; self-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states obtaining employment and becoming a valuable member of the community. The applicant is going to mental health treatment, volunteering with multiple veteran's organizations, and providing support to other veterans. 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 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. (6) Paragraph 10-8a stipulates a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. (See chap 3, sec II.) (7) Paragraph 10b stipulates Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper. (8) Paragraph 10-8c, stipulates when characterization of service under other than honorable conditions is not warranted for a Soldier in entry-level status, service will be uncharacterized. 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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, In Lieu of Trial by Court-Martial. 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-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, a narrative reason change, a separation code (SPD) change, and a reentry eligibility (RE) code change. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of AMHRR confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, in consultation with legal counsel, voluntarily requested, in writing, a discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and indicated an understanding an under other than honorable conditions discharge could be received, and the discharge would have a significant effect on eligibility for veterans' benefits. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 10, AR 635-200, with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," and the separation code is "KFS." 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 regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends the SPD code should be changed. SPD 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 10, is "KFS." The applicant contends the reentry eligibility (RE) code needs changed. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, the applicant was appropriately assigned an RE code of "4." An RE code of "4" cannot be waived, and the applicant is no longer eligible for reenlistment. The applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service. The applicant contends the VA has granted a service-connected disability for PTSD. The applicant provided a VA rating decision to support the contention, which reflects the applicant was rated 100 percent service connected for PTSD with TBI, (also claimed as major depressive, intermittent explosive, adjustment and anxiety disorder with mixed disturbance of emotions and conduct). The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than used by the Army when determining a member's discharge. The applicant's AMHRR is void of a mental status evaluation. The applicant contends an upgrade of the discharge would allow veterans benefits. Eligibility for veteran's benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. The applicant contends obtaining employment and volunteering in the community. 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. In reference to counsel's request for pre-decisional documents, it is not the practice of the Army Review Boards Agency to provide pre-decisional documents prior to adjudication. Once the case has been adjudicated, the applicant and counsel will be provided a copy of the final decision. 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 holds PTSD and TBI diagnoses, which may mitigate applicant's misconduct that lead to applicant's separation. (2) Did the condition exist or experience occur during military service? Yes. Applicant is service-connected for PTSD and TBI. (3) Does the condition or experience actually excuse or mitigate the discharge? No. It is the opinion of the Board's Medical Advisor that there are no mitigating Behavioral Health conditions for applicant's basis for separation. Applicant's severe physical assaults that were the basis for applicant's separation, are not part of the natural history or sequelae of PTSD, TBI or other behavioral health conditions, and, as such, are not mitigated under Liberal Consideration. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that any of the applicant's medical conditions of TBI/PTSD outweighed the unmitigated basis for applicant's separation - repeated assaults, threats, and disobeying a lawful no-contact order. b. Response to Contention(s): (1) The applicant contends the narrative reason/SPD code needs to be changed. The Board considered this contention but determined that the applicant's Chapter 10 separation in lieu of trial by courts martial did not warrant any change to the narrative reason/SPD code. (2) The applicant contends the reentry eligibility (RE) code needs changed. The Board determined that no change to the RE code is warranted. (3) The applicant contends good service, including a combat tour. The Board 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 repeated assaults, threats, and disobeying a lawful no-contact order, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation (4) The applicant contends the VA has granted a service-connected disability for PTSD. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant's time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member's discharge characterization. In this case, the Board determined that the applicant's PTSD did not outweigh the unmitigated misconduct that was the basis for applicant's separation. (5) The applicant contends an upgrade would allow veterans benefits. The Board determined that eligibility for Veteran's benefits, to include educational benefits under the Post- 9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. (6) The applicant contends an upgrade will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. (7) The applicant contends obtaining employment and volunteering in the community. 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 determined that the applicant's post-service accomplishments do not warrant any discharge change owing the serious nature of the discharging offenses. 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 TBI/PTSD did not outweigh the unmitigated offenses of repeated assaults, threats, and disobeying a lawful no-contact order. 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 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 AR20210002917 1