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, the applicant enlisted on 23 May 2007 and considers being an upstanding Soldier prior to a deployment to Iraq. The applicant claims that the applicant did not have any UCMJ actions. The applicant claims when the applicant returned home from Iraq in 2010, the applicant had a difficult time readjusting and was later diagnosed with PTSD. The applicant claims that the applicant's marriage began to fall apart and the applicant believed no support system was available. The applicant claims to have used alcohol to cope with the difficulties. In 2011, the applicant claims that the DUI offense led to the discharge in 2011, with a general (under honorable conditions). After the discharge, the applicant claims to have received the help needed from the VA. The applicant divorced and remarried. The applicant attended college and graduated with a Bachelor's Degree in Criminal Justice and seeking new career opportunities. The applicant claims to have grown and learned from the mistake. The applicant believes his service to the country was honorable and an honorable discharge would open new opportunities. The applicant would like to use the education benefits and have the opportunity to rejoin military service. The applicant states deep regrets the decision the applicant made and felt honored to serve the country. In a records review conducted on 31 March 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: Pattern of Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 1 February 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 9 December 2011 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was arrested for driving under the influence of alcohol on 8 October 2011. The applicant assaulted the applicant's spouse, P.S., on 25 April 2009 and on 14 January 2011. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 20 December 2011 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 12 January 2012 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 November 2008 / 6 years b. Age at Enlistment / Education / GT Score: 21 / GED / 90 c. Highest Grade Achieved / MOS / Total Service: E-4 / 13B10, Cannon Crewmember / 4 years, 8 months, 9 days d. Prior Service / Characterizations: RA, 23 May 2007 - 3 November 2008 / HD e. Overseas Service / Combat Service: SWA / Iraq (11 October 2009 - 21 September 2010) f. Awards and Decorations: ARCOM, AAM, MUC, AGCM, NDSM, GWOTSM, ICM-CS, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 25 April 2009, reflects the applicant was apprehended for: Spouse Abuse, under Article 134, UCMJ (On Post), and Assault Consummated by Battery under Article 128, UCMJ (On Post). FG Article 15, dated 20 May 2009, for unlawfully striking P.S. on the side of the head with the applicant's hand (25 April 2009). The punishment consisted of a reduction to E-2 (suspended); forfeiture of $784 pay (suspended); extra duty for 45 days; and, restriction for 45 days (suspended). Military Police Report, dated 14 January 2011, reflects the applicant was apprehended for: Spouse Abuse - Civilian Victim - (2nd Offense), under Article 134, UCMJ (On Post) and Assault Consummated by Battery under Article 128, UCMJ (On Post). CG Article 15, dated 23 February 2011, for assaulting P.S., by pushing victim to the floor (14 January 2011). The punishment consisted of a reduction to E-3; forfeiture of $455 pay (suspended); extra duty for 14 days; restriction for 14 days (suspended), and, an oral reprimand. Military Police Report, dated 10 October 2011, reflects the applicant was apprehended (On Post) for: Drunken Driving - Driving Under the Influence (Alcohol); Driving While License Suspended; No Insurance; and, Excessive Speed (65/45 MPH). General Officer Memorandum of Reprimand, dated 24 October 2011, reflects the Fort Benning Military Police apprehended the applicant for operating a motor vehicle while under the influence of alcohol. The officer observed the applicant traveling at a high rate of speed. After initiating a traffic stop, the officer detected a strong odor of alcohol emanating from the applicant. The officer administered a standardized field sobriety test, which the applicant failed. The applicant was administered a breathalyzer test which resulted in a reading of .189 grams per 210 liters breath alcohol content, exceeding the legal limit of 08g/210L. The applicant submitted a rebuttal statement. FG Article 15, dated 17 November 2011, for failing to obey a lawful order from Staff Sergeant G.B., not to drive the applicant's car until showing proof of auto insurance (8 October 2011) and physically controlling a vehicle while breath concentration level exceeded .08 grams of alcohol (8 October 2011). The punishment consisted of a reduction to E-1; forfeiture of $733 pay per month for two months (suspended); and, extra duty and restriction for 45 days. Five Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 2 November 2011, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could appreciate the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with: Adjustment Disorder with depressed mood and anxiety. The applicant was screened for PTSD and mild TBI, with negative results. The applicant had been enrolled in ASAP since October 2011. Report of Medical History, dated 22 November 2011, the examining medical physician noted in the comments section: Effexor: Anxiety, Depression. Report of Medical Examination, undated, the examining medical physician noted in the notes section: Anxiety. The applicant provided a letter from the Department of Veterans Affairs, dated 27 September 2018, reflecting a 30 percent disability rating for Post-Traumatic Stress Disorder (also claimed as anxiety and depression). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; DD Form 293; two self-authored statements; VA letter. 6. POST SERVICE ACCOMPLISHMENTS: The applicant graduated from college with a Bachelor's Degree in Criminal Justice. 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 14-12b, addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12b, pattern of misconduct. 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 contends being diagnosed with PTSD. The applicant provided a letter from the VA, reflecting a rating 30 percent disability for Post-Traumatic Stress Disorder (also claimed as anxiety and depression). The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 2 November 2011, which reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could appreciate the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with: Adjustment Disorder with depressed mood and anxiety. The applicant was screened for PTSD and mild TBI, with negative results. The MSE was considered by the separation authority. The applicant contends not having any UCMJ actions prior to the deployment. The applicant's AMHRR reflects the applicant deployed to Iraq from 11 October 2009 to 21 September 2010. The applicant was apprehended by the military police on 25 April 2009 for Spouse Abuse and Assault and accepted a FG Article 15 for assault on 20 May 2009. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The evidence of record shows the command attempted to assist the applicant in performing and conducting to Army standards by providing counseling and the imposition of non-judicial punishment. The applicant was enrolled in ASAP since October 2011. The applicant contends good service, including a combat tour. The Board will consider the service accomplishments and the quality of service. The applicant contends an upgrade would allow educational benefits through the Post-9/11. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill 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 desires to rejoin the Military Service. 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 graduating from college with a Bachelor's Degree in Criminal Justice. 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. 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 was diagnosed with an Adjustment Disorder, Unspecified Anxiety Disorder, Depression, and PTSD that may mitigate applicant's basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that applicant was diagnosed in service with an Adjustment Disorder, Unspecified Anxiety Disorder, Depression, and is service-connected for PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and determined that the medical condition partially mitigates the basis of separation. The Board's Medical Advisor opined that applicant's PTSD mitigated the DUI because the applicant's PTSD led applicant's self-medicating with substances. However, there is no natural sequelae between any of applicant's BH conditions and repeated instances of domestic violence, therefore there is no mitigation of applicant's IPV offenses that were the basis of applicant's basis of separation. (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 outweighed the unmitigated IPV offenses that were the basis for applicant's separation. b. Response to Contention(s): (1) The applicant contends having a diagnosis of PTSD. The Board liberally considered this condition and determined that the applicant's PTSD mitigated the DUI portion of the applicant's discharge, but the applicant's two violent instances of IPV as the offender, did not warrant an upgrade to the discharge. (2) The applicant contends not having any UCMJ actions prior to the deployment. The Board found the applicant's IPV pre-dated the deployment. Due to the seriousness of these offenses and one of the offenses pre-dated the deployment, a discharge upgrade is not 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 committing two IPV offenses, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation (4) The applicant contends an upgrade would allow educational benefits through the Post-9/11. 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. (5) The applicant desires to rejoin the Military Service. The Board determined that an upgrade was not warranted at this time. The applicant currently holds an RE-code of RE-3. 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 (6) The applicant contends graduating from college with a Bachelor's Degree in Criminal Justice. 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 serious and repeated nature of the applicant's IPV offenses did not warrant an upgrade. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable d. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service because, despite applying liberal consideration, the applicant's PTSD did not outweigh the unmitigated offenses of IPV, and the discharge was 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 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 AR20210003063 1