1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of the characterization of service from general (under honorable conditions) to honorable. The applicant seeks relief contending, in effect, the applicant was unfairly treated. The applicant believes his separation was the result of abuse of power, poor leadership, a disregard for his physical and mental health condition, which was diagnosed by his primary and secondary physician; and, his physical and mental medical profile. The applicant contends separation was retaliatory, in response to pointing out mistreatments in the unit. The applicant requests a medical retirement, and reinstatement of E-5 rank. The applicant contends this would help remedy his financial difficulties, and aid getting the proper treatment and support system needed for mental and physical conditions, in light of service connected disabilities. In a records review conducted on 10 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: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 24 January 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The notification of intent to separate is void from the AMHRR. The Commander's Report, dated 1 March 2018, reflects the specific reasons for separation: On 14 December 2016, the applicant committed assault when he punched T.D. Jr., knocking him down and continuing to punch him, leaving visible injuries on his face. On or about 31 May 2017, the applicant committed domestic assault when he struck his wife, T.L.A. On or about 4 January 2017, the applicant was disrespectful toward CPT E.A.O.; on or about 28 September 2016, the applicant was disrespectful toward SSG J.T.; and on or about 19 October 2016, the applicant shoved SSG J.T. (3) Recommended Characterization: NIF (4) Legal Consultation Date: 13 February 2018 (5) Administrative Separation Board: On 13 August 2018, the administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant's separation with a general (under honorable conditions) discharge. (6) Separation Decision Date / Characterization: 10 October 2018 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 March 2016 / 6 years b. Age at Enlistment / Education / GT Score: 40 years / HS Graduate / 87 c. Highest Grade Achieved / MOS / Total Service: E-5 / 92F10, Petroleum Supply Specialist / 10 years, 7 months, 26 days d. Prior Service / Characterizations: RA, 29 May 2008 - 13 November 2011 / HD RA, 14 November 2011 - 4 November 2014 / HD RA, 5 November 2014 - 13 March 2016 / HD e. Overseas Service / Combat Service: Korea / SWA / Iraq (15 April 2009 - 24 December 2009; 22 May 2010 - 12 December 2011); Afghanistan (15 April 2015 - 15 January 2016) f. Awards and Decorations: ARCOM-3, AAM-5, AGCM-2, NDSM, ICM-2CS, ACM-CS, GWOTSM, NCOPDR, KDSM, ASR, OSR-2, MOVSM, NATOMDL, MUC / The applicant's AMHRR reflects award of a third OSR, however, the award is not reflected on the DD Form 214. g. Performance Ratings: 1 November 2015 - 30 October 2016 / Not Qualified h. Disciplinary Action(s) / Evidentiary Record: The commander's report, dated 1 March 2018, indicates the applicant received a FG Article 15 for violations of Article 89, two specifications of Article 91 and Article 128. The punishment imposed was reduction to SPC / E-4, extra duty for 45 days (suspended) an oral reprimand. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of his Medical Evaluation Board (MEB) Proceedings, dated 20 March 2017; which reflect the applicant was diagnosed with an adjustment disorder, unspecified; medically unacceptable in accordance with AR 40-501, Chapter 3-32a, b. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Service Member Pre-Separation / Transition Counseling Checklist (three pages); MEB memorandum; Exclusion Letter from Fort Campbell; Request to Direct Separation Through Medical Channels memorandum (two pages); MEB Proceedings; administrative separation board Findings and Recommendations (two pages); DD Form 214; Montgomery County, Tennessee Court document; SGT L's statement; Curriculum and Attendance for Domestic Abuse Group (three pages); Certificate of Achievement; Physical Profile Record; DA Form 1594 (two); Blanchfield Army Community Hospital Document; Cumberland Hall Hospital Document (three pages); Inspector General Action Request (two pages); Memorandum subject Domestic Abuse Group; AAM Certificate; NCO Evaluation Report; two character statements; Memorandum subject Appeal of FG Article 15; sworn statements (three); and letter addressed to US Senator with privacy Act Release Form. 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 14-12c 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 his separation was unfair, retaliatory, and the result of abuse of power and poor leadership. The applicant provided third party statements to support his contention of abuse of power. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends his separation was due to command disregard of his mental health diagnoses, as well as his medical profile. The MEB proceedings from 2017, provided with the application reflect the applicant was diagnosed with an adjustment disorder. The applicant provided a physical profile record stating the applicant was not to perform night time or 24-hour duty. The applicant also provided two DA 1594s showing him on 24-hour duty. The AMHRR is void of a mental status evaluation. 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 a medical evaluation board was under process at the time of the separation proceedings. The Department of Defense disability regulations do not preclude a disciplinary separation while undergoing a medical board. Appropriate regulations stipulate separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board and is subsequently processed for an involuntary administrative separation or referred to a court- martial for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical process is stopped, and the board report is filed in the member's medical record. The applicant contends his E-5 rank should be reinstated. 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 good service, including three combat tours. The Board considered the service accomplishments and the quality of service. The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. The applicant contends 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. 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 and found applicant was diagnosed in service with Major Depressive Disorder and Unspecified Anxiety Disorder, and the applicant is service connected by the VA for combat-related PTSD that could mitigate applicant's basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board Medical Advisor found the applicant was diagnosed in service with Major Depressive Disorder and Unspecified Anxiety Disorder, and applicant is service connected by the VA for combat- related PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. After applying Liberal Consideration, the Board's Medical Advisor opines that applicant's PTSD mitigates some of the misconduct that led to applicant's separation. Given the nexus between PTSD and difficulty with authority, applicant's PTSD mitigates applicant's disrespect basis for separation. However, applicant's assault and domestic violence were not associated with applicant's BH conditions and therefore there is no mitigation. (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 applicant's unmitigated misconduct of assault and domestic violence outweighs the applicant's PTSD and other BH conditions due to the severity of the unmitigated offenses. b. Response to Contentions: (1) The applicant contends his separation was unfair, retaliatory, and the result of abuse of power and poor leadership. The Board considered this contention during deliberation and determined the evidence of record supports the presumption of government regularity as noted on 13 August 2018, the administrative separation board convened and the applicant appeared with counsel. The Board determined the weight of the evidence in the AMHRR and other Board documents does not support a conclusion that there was any arbitrary or capricious actions by the command, and therefore the discharge was proper and equitable. (2) The applicant contends his separation was due to command disregard of his mental health diagnoses, as well as his medical profile. The Board liberally considered this contention but found the weight of the evidence supports government regularity throughout applicant's separation process. (3) 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. (4) The applicant contends a medical evaluation board was under process at the time of the separation proceedings. The Department of Defense disability regulations do not preclude a disciplinary separation while undergoing a medical board. Appropriate regulations stipulate separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board and is subsequently processed for an involuntary administrative separation or referred to a court- martial for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical process is stopped, and the board report is filed in the member's medical record. (5) The applicant contends his E-5 rank should be reinstated. The Board determined that the applicant's requested change to the DD Form 214 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. (6) The applicant contends good service, including three combat tours. The Board considered this contention but 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 assault and domestic violence, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (7) The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. (8) 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. 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 contentions 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 and other BH conditions did not outweigh the unmitigated offenses of assault and domestic violence, and the discharge was both proper and equitable, even after considering applicant's length of service, including combat tours. 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, 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 AR20210003109 1