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: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, being discharged from the Army before the civilian case was closed. The case was dismissed after the discharge and based on this reason, the applicant requests an upgrade to honorable. In a records review conducted on 5 May 2022, and by a 3 - 2 vote, the Board determined that the characterization of service was proper and equitable. However, based on the applicant's quality of service, to include combat service, and the circumstances surrounding the discharge (OBHI and PTSD diagnoses); the Board determined the narrative reason for the applicant's separation is inequitable. Therefore, the Board directed the issue of a new DD Form 214 changing the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. 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: 7 March 2018 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: 6 February 2018 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 April 2015 / 3 years, 26 weeks b. Age at Enlistment / Education / GT Score: 24 / HS Graduate / 96 c. Highest Grade Achieved / MOS / Total Service: E-4 / 91F10, Small Arms/Artillery / 2 years, 10 months, 11 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Kuwait (26 July 2016 - 20 February 2017) f. Awards and Decorations: AAM, NDSM, GWOTEM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: El Paso Police Department Incident/Investigation Report, dated 24 August 2017, reflects the applicant was arrested for Assault Causes Bodily Injury / FAMV (Simple) when the victim indicated the applicant (husband) punched the victim in the chest and slammed the victim to the ground. The applicant was interviewed and indicated the victim punched the applicant several times on the face and scratched the chest and back. The applicant left the apartment to obtain a hotel room for the night after the assault. Military Protective Order, dated 26 August 2017, reflects the applicant was issued a no contact order with M.G., due to the ongoing domestic violence investigations against the applicant and violations of the order may result in administrative or disciplinary acting including trial by court- martial. Developmental Counseling Form, dated 19 September 2017, reflects the applicant was counseled by the immediate commander for being recommended for administrative separation under AR 635-200, Chapter 14-12c for being involved in an off-post domestic violence incident. Developmental Counseling Form, dated 19 September 2017, reflects the applicant was counseled by the immediate commander for recording others without consent and the applicant would be escorted due to the opinion of medical professionals of being a risk to others. Report of Medical History, dated 5 October 2017, the examining medical physician noted in the comments section: The Servicemember reported being evaluated and treated for the complaint of sequelae anxiety, depression, and insomnia. Report of Mental Status Evaluation, dated 1 December 2017, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. There was no indication of psychiatric disorder that would warrant consideration of medical separation, but the Servicemember was experiencing considerable distress at the time of the incident and this may have contributed in some way to the behavior. Commander's Report, undated, reflects the specific, factual reason for action recommended was the applicant assaulted the wife on 24 August 2017. U.S. Army Garrison, Fort Bliss, TX, Orders 061-0557, dated 2 March 2018, reflect the applicant was ordered to report to the transition point on 7 March 2018. The date of discharge from the Regular Army, unless/ changed or rescinded: 7 March 2018. DD Form 214 (Certificate of Release or Discharge from Active Duty), 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 District Court of El Paso County, TX, Motion to Dismiss, dated 10 April 2018, reflecting the Assistant District Attorney entered a Motion to Dismiss the case against the applicant in the charged offense of AFV because the necessary witness(ES) could not be located. The judge dismissed the case based on the motion. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: BH Command Discharge Summary, dated 11 September 2017, reflects the applicant was hospitalized from 28 August 2017 to 11 September 2017, and discharged with a diagnosis of: PTSD secondary to trauma experienced as a child and teenager; Psychosis with paranoid delusions, second episode by report of family and patient; Relationship difficulty with spouse; Cannabis Use Disorder; Strong Cluster B, borderline, traits, rule in/out personality disorder; Occupational (military) difficulty; and, Rule in MDD, Recurrent, in partial remission. Physical Profile, dated 11 September 2017, reflects the applicant had the following medical conditions: Adjustment Disorder; PTSD; Depression; Dissociative/blackout episodes; and, Psychosis two episodes and strong personality characteristics 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; District Court of El Paso county, TX, Motion to Dismiss. 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. (7) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. e. Army Regulation 635-5-1, Separation Program Designator (SPD) Codes, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes. RE-3 applies to a 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 contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which 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 incident which led to the discharge was dismissed post-service. The AMHRR reflects the applicant was arrested for Assault Causes Bodily Injury / FAMV (Simple). The applicant provided court documents to show the judge dismissed the case for the offense AMV, based on a motion entered by the Assistant District Attorney because the necessary witness(es) could not be located. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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. The applicant was diagnosed in service with Acute Stress Reaction, Adjustment Disorder, Unspecified Anxiety Disorder, Major Depressive Disorder, and he was psychiatrically hospitalized for psychosis. He is also diagnosed and service connected by the VA with PTSD. These conditions may mitigate the misconduct forming the basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed in service with Acute Stress Reaction, Adjustment Disorder, Unspecified Anxiety Disorder, Major Depressive Disorder, and he was psychiatrically hospitalized for psychosis. He is also diagnosed and service connected by the VA with PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor determined that the medical condition partially mitigates the basis of separation. The Board's Medical Advisor opined that applicant was diagnosed in service with Acute Stress Reaction, Adjustment Disorder, Unspecified Anxiety Disorder, and Major Depressive Disorder. He is also diagnosed and service connected by the VA with PTSD. While none of these BH conditions mitigate domestic violence, applicant was also psychiatrically hospitalized with psychosis a few days after the domestic violence. Given that psychosis is a condition in which one is out of touch with reality, there is evidence to support that applicant may have been out of touch with reality at the time of the misconduct that led to his separation. Accordingly, applicant's basis for separation is partially mitigated. (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 any of the applicant's medical conditions outweighed the partially mitigated basis for applicant's separation. b. Response to Contention(s): The applicant contends the incident which led to the discharge was dismissed post-service. The Board considered this contention but that while both counts of misconduct (illegal recording and domestic violence) that led to separation are partially mitigated due to applicant's psychosis, the events still occurred and but warranted only a narrative reason change. c. The Board determined that the narrative reason only was inequitable based on the partially mitigated basis for separation relative to applicant's quality of service, to include combat service, and the circumstances surrounding the discharge (OBHI and PTSD diagnoses). However, the Board voted not grant relief in the form of an upgrade to the discharge characterization. Therefore, the Board directed the issue of a new DD Form 214 changing the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. 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 BH diagnoses of Acute Stress Reaction, Adjustment Disorder, Unspecified Anxiety Disorder, Major Depressive Disorder, and service connected by the VA with PTSD did not outweigh the medically partially mitigated offenses of illegal recording and domestic violence. 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 to change the reason for discharge to Misconduct (Minor Infractions) under the pretexts described above, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (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: Yes b. Change Characterization to: No Change c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change a. Change Authority to: AR 635-200, paragraph 14-12a 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 AR20210002967 1