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 under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, suffering from various mental health issues during service, which affected the applicant's judgment, ultimately mitigating the conduct leading to discharge. The applicant also believes the discharge was inequitable because it was based on one isolated incident without properly accounting for the length of the applicant's service with no other adverse actions. In a records review conducted on 12 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: 8 September 2017 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 2 June 2017, the applicant was charged with: Charge I: Violating Article 90, UCMJ, for having received a lawful command from CPT S. V. W., the applicant's superior commissioned officer, on 28 March 2017, to not contact SSG A. J. or words to that effect, did willfully disobey the same. Charge II: Violating Article 95, UCMJ, on 26 May 2017, the applicant did resist being apprehended by an armed forces policeman by fleeing to a bedroom and locking the door. Charge III: Violating Article 109, UCMJ, on 26 May 2017, the applicant willfully and wrongfully destroyed by breaking a door and breaking a window of a value of over $500, the property of Island Palms Community. Charge IV: Violating Article 128, UCMJ: Specification 1: The applicant did, on 26 May 2017, unlawfully strike SSG A.M.J. on the face with the applicant's hand. Specification 2: The applicant did, on 26 May 2017, assault SGT C. S., who then was and was then known by the applicant to be a person then having and in the execution of military police duties, by striking SGT C.S. in the groin area with the applicant's leg during apprehension. Charge V: Violating Article 129, UCMJ, on 26 May 2017, in the nighttime, unlawfully break and enter the dwelling house of SSG A.M.J., with intent to commit assault therein. Charge VI: Violating Article 134, UCMJ: Specification 1: On 26 [March] 2017, the applicant had a duty for the care of L.J., a child under the age of 16 years and did endanger the mental health and safety and welfare of said child, by holding the child in the applicant's arms while the applicant assaulted SSG A.M.J., and that such conduct constituted culpable negligence, such conduct being to the prejudice of good order and discipline in the armed forced and of a nature to bring discredit upon the armed forces. Specification 2: On 26 May 2017, the applicant had a duty for the care of L.J., a child under 16 years, and did endanger the mental health and safety and welfare of said child, by breaking down the door to the child's room while attempting to assault SSG A.M.J., and that such conduct constituted culpable negligence, such conduct being to the prejudice of good order and discipline in the armed forced and of a nature to bring discredit upon the armed forces. (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: 14 August 2017 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 June 2013 / Indefinite b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 111 c. Highest Grade Achieved / MOS / Total Service: E-7 / 74D10 8R, Chemical Operations Specialist, 91H30, Track Vehicle Repairer / 16 years, 2 months, 7 days d. Prior Service / Characterizations: RA, 18 April 2001 - 23 July 2004 / HD RA, 24 July 2004 - 10 May 2006 / HD RA, 11 May 2006 - 2 February 2011) / HD RA, 3 February 2011 - 11 June 2013 / HD e. Overseas Service / Combat Service: Hawaii, SWA / Iraq (15 March 2004 - 15 March 2005; 7 April 2007 - 2 June 2008); Kuwait (29 October 2014 - 8 July 2015) f. Awards and Decorations: ARCOM-3; AAM-6; AGCM-5; NDSM; NDSM; ACM-2CS; ICM- CS; HSM; GWOTEM; GWOTSM; NCOPDR-2; ASR; OSR-2; CAB; MUC-2 g. Performance Ratings: 14 June 2013 - 2 January 2014 / Among The Best 3 January 2014 - 27 June 2014 / Fully Capable 8 August 2014 - 7 August 2015 / Among The Best 8 August 2015 - 30 June 2016 / Met Standard h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. Order of Pretrial Confinement, dated 1 June 2017, for charges as described in paragraph 3c. Personnel Action form, reflecting the applicant's duty status changed: From "Present for Duty (PDY)" to "Confined by Military Authorities (CMA)," effective 1 June 2017 i. Lost Time / Mode of Return: 75 days (CMA, 1 June 2017 - 14 August 2017) / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: Memorandum, Subject: RCM 706 Evaluation provided by the applicant, dated 24 August 2017, reflects the following diagnoses: PTSD, mild, Major Depressive Disorder, mild, chronic, Alcohol Abuse, Anxiety Disorder with Panic Attacks. The evaluation further reflects the diagnoses did not affect the applicant's ability to understand the nature, quality, and wrongfulness of conduct, and did not affect ability to understand the nature of proceedings against the applicant. VA rating decision provided by the applicant, dated 16 May 2018, reflects a 50 percent service- connected disability rating for unspecified Depressive Disorder with Alcohol Use Disorder claimed as PTSD, Major Depressive Disorder, and Anxiety with panic attacks. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; 15 NCOERs; memorandum, subject: RCM 706 Evaluation; VA rating decision, and character letters (two). 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 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) 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 "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-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 evidence of AMHRR confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant voluntarily requested, in writing, a discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court- martial. The under other than honorable conditions discharge received by the applicant was appropriate under the regulatory guidance. The applicant contends suffering from various mental health issues during service, which affected the applicant's judgment, ultimately mitigating the conduct leading to discharge. The applicant provided a VA rating decision, reflecting a 50 percent service-connected disability rating for unspecified Depressive Disorder with Alcohol Use Disorder claimed as PTSD, Major Depressive Disorder, and Anxiety with panic attacks, and a Memorandum, Subject: RCM 706 Evaluation, reflecting the following diagnoses: PTSD, mild, Major Depressive Disorder, mild, chronic, Alcohol Abuse, Anxiety Disorder with Panic Attacks to support this contention. The evaluation further reflects the diagnoses did not affect the applicant's ability to understand the nature, quality, and wrongfulness of conduct, and did not affect ability to understand the nature of proceedings against the applicant. The applicant contends the event 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 good service, including a combat tour. The Board considered the service accomplishments and the quality of service. The third party statements provided with the application speak highly of the applicant. They all recognize the applicant's good character. 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 applicant's Major Depressive Disorder, Unspecified Anxiety Disorder,Adjustment Disorder, and Mood Disorder could potentially mitigate the discharge. (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 Major Depressive Disorder, Unspecified Anxiety Disorder, Adjustment Disorder, and Mood Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor, after applying liberal consideration, opined that applicant's Major Depressive Disorder, Unspecified Anxiety Disorder, Adjustment Disorder, and Mood Disorder do not mitigate applicant's misconduct (disobeying a lawful command, resisting arrest, property destruction, assault, breaking and entering and child endangerment) that was the bases for the applicant's separation because none of the applicant's misconduct are not part of any of the sequela of symptoms associated with Major Depressive Disorder, Unspecified Anxiety Disorder, Adjustment Disorder, and Mood Disorder. (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the applicant's Major Depressive Disorder, Unspecified Anxiety Disorder, Adjustment Disorder, and Mood Disorder do not outweigh applicant's unmitigated misconduct (disobeying a lawful command, resisting arrest, property destruction, assault, breaking and entering and child endangerment) that was the bases for applicant's discharge. b. Response to Contention(s): (1) The applicant contends suffering from various mental health issues during service, which affected the applicant's judgment, ultimately mitigating the conduct leading to discharge. The Board reviewed the applicant's DOD and VA health records and found that the applicant's Major Depressive Disorder, Unspecified Anxiety Disorder, Adjustment Disorder, and Mood Disorder did not mitigate the applicant's misconduct (disobeying a lawful command, resisting arrest, property destruction, assault, breaking and entering and child endangerment) because there is no association between the BH conditions and the charges that led to the separation. (2) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board considered this contention and found that the applicant's four prior periods of HD service and 28-month combat tour in Iraq, including the applicant's receipt of a CAB and ARCOMs/AAMS, do not outweigh the severity of the offenses, including the applicant holding applicant's infant child while hitting applicant military female partner and assaulting a military police office after fleeing apprehension, that was the bases for the applicant's separation. (3) The applicant contends good service, including a combat tour. 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 disobeying a lawful command, resisting arrest, property destruction, assault, breaking and entering and child endangerment, the applicant diminished the quality of service below that meriting an Honorable discharge at the time of separation. c. The Board determined 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 BH diagnoses of Major Depressive Disorder, Unspecified Anxiety Disorder, Adjustment Disorder, and Mood Disorder did not outweigh the unmitigated offenses of disobeying a lawful command, resisting arrest, property destruction, assault, breaking and entering and child endangerment that were the bases for the applicant's discharge, and the discharge was both proper and equitable. 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 and 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 AR20210003006 1