1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: Yes 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, through counsel, seeks relief contending in effect, the applicant was suffering from service-connected PTSD and TBI, therefore, should have received an honorable discharge, or a discharge under AR 635-200, Paragraph 5-17. The general (under honorable conditions) characterization and narrative reason for discharge were arbitrarily assigned without justification, the applicant states being a good Soldier, as there is no record of misconduct in the service record, and no civilian court record of guilt. The applicant further states mere apprehension by the police is not a crime under the Manual for Courts Martial, the applicant was the defendant in the case against the applicant’s spouse, was suffering from PTSD at the time of the domestic incident, and without a civilian conviction the applicant was improperly separated under 14-12c since the conduct alleged does not amount to serious misconduct. The applicant states a correction to the tarnished record will allow for increased VA benefits, and employment promotional opportunities. The applicant states there is an error in block 12 of the DD Form 214, the date he reenlisted was 26 July 2009. The applicant also requests removal from the DOD Central Registry Database due to the inequity suffered as a result of the discharge. In a records review conducted on 7 April 2022, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board’s decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 22 November 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 18 October 2011 (2) Basis for Separation: The applicant was informed of the following reasons: the applicant was apprehended for domestic violence assault and family violence (16 July 2011) (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 19 October 2011 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 27 October 2011 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 24 January 2009 / 6 years b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 101 c. Highest Grade Achieved / MOS / Total Service: E-5 / 11B2P, Infantryman / 4 years, 3 months, 27 days d. Prior Service / Characterizations: RA, 26 July 2007 – 23 January 2009 / HD e. Overseas Service / Combat Service: Alaska / SWA / Iraq (5 December 2008 – 15 November 2009) f. Awards and Decorations: ARCOM, AAM, AGCM, NDSM, ICM-CS, GWOTSM, NCOPDR, ASR, OSR, CIB g. Performance Ratings: NIF h. Disciplinary Action(s) / Evidentiary Record: Counseling statement, dated 18 July 2011, for domestic assault. Municipality of Anchorage Arrest Report, dated 16 July 2011, reflects the applicant was arrested for the charge of: Assault-reckless Force or Violation; Family Violence. Military Police Report, dated 19 July 2011, reflects the applicant was under investigation for assault-reckless force or violence, family violence, off post. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Behavioral Health Evaluation, dated 20 August 2011, revealed the applicant had an Axis I diagnosis of major depressive disorder, mild, chronic and alcohol dependence. The applicant was mentally responsible, met retention requirements AR 40-501, Chapter 3. The applicant had the mental capacity to understand and to participate in the proceedings. The applicant was psychiatrically cleared for any administrative action deemed appropriate by command. VA Rating decision, dated 30 August 2013, reflects the applicant was assigned an evaluation of 100 percent for PTSD and 10 percent for TBI (also claimed as memory loss and speech impairment) 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; DD Form 214; self-authored history and timeline with attachments; Counsel’s legal brief in support of the applicant’s contentions; Report of Behavioral Health Evaluation; Chapter 14 separation packet; Enlisted Record Brief; Post- Deployment Health Assessment (PDHA); excerpts from VA evaluation; District / Superior Court, State of Alaska at Anchorage Court documents; ARCOM Certificate; AAM Certificate; SGT promotion orders; Honorable discharge certificate; Oath of reenlistment; two Recommendations for award; Airborne course diploma; three Certificates of training; NCO Academy diploma; CIB Orders; Report of psychological and psychoeducational evaluation; Compuscore score report; Chronological record of medical care; Fort Richardson Health Clinic documents; Petition for Domestic Violence Protective Order; Memorandum Subject, Central Registry Board Incident Determination; AR 635-200 excerpt; Alaska Civil Pattern Jury Instructions; Public Affairs Article; Joint Base Elmendorf-Richardson article; and Diagnostic and statistical manual of mental disorders excerpt. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states having enrolled in college, received good grades, and served as the campus Veterans’ Club president. The applicant, through counsel, states overcoming the health condition after receiving appropriate care and treatment for PTSD and TBI, and left school to obtain employment working for Rolex company in New York, in the fraud detection and prevention department. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities’ last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember’s date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3, prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (6) Paragraph 14-12c prescribes a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. e. Army Regulation 635-5-1, Separation Program Designator (SPD) Codes, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKQ” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant’s record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Misconduct (Serious Offense),” and the separation code is “JKQ.” Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214 and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends the separation code (SPD) should be changed. Separation codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations the SPD code specified by Army Regulations for a discharge under Chapter 14, paragraph 14-12c, is “JKQ.” Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214 and dictates the entry of the separation code entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other SPD code to be entered under this regulation. The applicant contends PTSD and TBI diagnoses mitigate the circumstances leading to discharge, warranting an honorable discharge. Report of Behavioral Health Evaluation dated 20 August 2011, reflects the applicant had an Axis I diagnosis of major depressive disorder, mild, chronic and alcohol dependence, and was mentally responsible, met retention requirements per AR 40-501, Chapter 3. The Behavioral Health Evaluation further indicated the applicant had the mental capacity to understand and was psychiatrically cleared for any administrative action deemed appropriate by command. The Behavioral Health Evaluation was considered by the separation authority. The applicant contends the discharge should have been for medical reasons. Army Regulation 635-200, in pertinent part, stipulates commanders will not separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The applicant contends conduct did not warrant separation, stating this was an isolated incident, mere apprehension by police is not punishable under the UCMJ, there was no conviction in civilian court, and further, the applicant was lawfully the defendant during the domestic incident with the applicant’s spouse, for which the applicant was arrested. The applicant submitted court documents showing the civilian criminal case was dismissed to support this contention. The AMHRR indicates the applicant committed a discrediting offense. 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 other Soldiers with similar offenses were not discharged. Applicable regulations state each case must be decided on an individual basis, considering the unique facts and circumstances of the particular case. The applicant contends good service, including a combat tour. 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 opportunities. The Board does not grant relief to gain employment or enhance employment opportunities. The applicant contends a change to block 12 of the DD form 214 is warranted. The applicant’s requested change to the DD Form 214 does not fall within this board’s purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans’ Service Organization. The applicant contends removal from the DOD Central Registry Database is warranted as a result of an inequitable discharge. The applicant’s request does not fall within this board’s purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans’ Service Organization. 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 Adjustment Disorder, Major Depressive Disorder, TBI, combat-related PTSD. These conditions are potentially mitigating for various forms of misconduct. (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 Adjustment Disorder and Major Depressive Disorder and is diagnosed and service connected by the VA with combat- related PTSD and TBI. (3) Does the condition or experience actually excuse or mitigate the discharge? No. After liberally considering the applicant’ diagnoses, the Board's Medical Advisor opined the applicant’s conditions do not mitigate the basis of separation as domestic violence in not part of the natural sequelae of Adjustment Disorder, Major Depressive Disorder, PTSD, or TBI , and further there is no evidence in the medical record that any of these BH conditions were associated with applicant’s misconduct that led to the 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 domestic violence basis for applicant’s separation. b. Response to Contention(s): (1) The applicant contends the narrative reason/SPD for the discharge needs changed. Due to the lack of medical mitigation or persuasive impropriety or inequity for the Board’s consideration, the Board voted to deny the upgrade request. (2) The applicant contends PTSD and TBI diagnoses mitigate the circumstances leading to his discharge, warranting an honorable discharge. The Board, after applying liberal consideration, concurred with the opinion of the Board’s Medical Advisor that the available evidence did not support a conclusion that any of the applicant’s medical conditions outweighed the domestic violence basis for applicant’s separation. (3) The applicant contends the discharge should have been for medical reasons. The medical records were reviewed and considered by the discharging authority, and the Board concurred with the characterization, determining the non-medical discharge was proper and equitable. (4) The applicant contends conduct did not warrant separation, stating this was an isolated incident, mere apprehension by police is not punishable under the UCMJ, there was no conviction in civilian court, and further, the applicant was lawfully the defendant during the domestic incident with the applicant’s spouse, for which the applicant was arrested. 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 the arrest for domestic violence assault and family violence, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (5) The applicant contends other Soldiers with similar offenses were not discharged. There is no evidence provided or available that could prove merit to this contention. The Board determined each case, even if similar, is different and the complete facts and circumstances surrounding each discharge are evaluation individually by command, and in this case, the weight of the evidence supports government regularity for this proper and equitable discharge. (6) The applicant contends good service, including a combat tour. The Board considered the applicant’s length and quality of service, to include combat service, during Board deliberations. (7) The applicant contends an upgrade of the discharge 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. (8) The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment opportunities. The Board does not grant relief to gain employment or enhance employment opportunities. (9) The applicant contends a change to block 12 of the DD form 214 is warranted, as well as removal from the DOD Central Registry Database due to the inequitable discharge. The Board determined that the applicant’s requested change to the DD Form 214 and removal from the DoD Central Registry Database does not fall within the purview of the ADRB. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using a DD Form 149 regarding this matter. A DD Form 149 may be obtained from a Veterans’ Service Organization. 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 Adjustment Disorder, Major Depressive Disorder, PTSD, and TBI did not mitigate the offenses of domestic violence assault and family violence, 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 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 AR20210003087 1