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, he was never convicted of a misdemeanor or above, and never received a DUI. The allegations of domestic violence were disputed and dismissed in court as well as the charge for driving while ability impaired (DWAI). In a records review conducted on 24 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: 13 December 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 April 2016 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 27 November 2015, the applicant struck a telephone pole and attempted to flee the scene of the accident; on or about 9 November 2014 and on or about 5 April 2015, the applicant was arrested for domestic violence/harassment towards his wife; and on or about 27 February 2015 and on or about 7 September 2015, the applicant failed to be at his appointed place of duty and lost his Military Common Access Card. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: Memorandum for Record, dated 13 May 2016, indicates on 19 April 2016, the applicant was notified of Administrative Separation; under AR 635-200, Chapter 14-12c, Commission of a Serious Office by CPT J. N. On 28 April 2016, CPT O. C., TDS, requested a delay until 30 May 2016. The request was considered and denied by CPT J. N., and the Soldier was given until 3 May 2016 to sign his election of rights and submit his matters. As of 13 May 2016, the applicant had not submitted any additional matters in his defense or made any election of his rights under AR 635-200, Chapter 14-12c Commission of a Serious Offense. In accordance with, paragraph 2-4c, AR 635-200, a failure to submit election of rights within seven duty days of notification constitutes a waiver of those rights. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 12 October 2016 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 February 2013 / 3 years, 21 weeks b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 104 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92Y10, Unit Supply Specialist / 3 years, 10 months, 10 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: AAM, NDSM, GWOTSM, KDSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 9 November 2014, reflects the applicant was apprehended for: Harassment 2nd Degree (Civil) (Off Post); Criminal Mischief 4th Degree (Civil) (Off Post); and Domestic Disturbance (Off Post). Military No-Contact Order, dated 7 April 2015, reflects the applicant was directed to have no contact with his spouse E. B. CG Article 15, dated 29 October 2015, for failing to go at the time prescribed to his appointed place of duty on or about 27 February, 5, 6 and 25 March and 9 September 2015; and without proper authority, through neglect lose his military identification card, of a value of less than $500, military property of the United States on 7 September 2015. The punishment consisted of forfeiture of $495 pay; and, extra duty for 14 days. Law Enforcement Report – Final, dated 29 October 2015, reflects the applicant was being investigated for Criminal Contempt 2nd Degree (Civil). On 1 August 2015, the applicant texted E. B via cell phone. Investigation revealed that on 6 April 2015, the applicant was issued an order from the Town of LeRay Court to refrain from any communication with E. B. The applicant was arrested and arraigned in the City of Watertown court. The applicant was remanded to Jefferson County Jail in lieu of $500 cash bail, which he later posted. Fort Drum Police were notified and the applicant was placed in hand irons behind his back which were double locked and checked for fit, and transported to the Fort Drum Police Station. The applicant and the patrol vehicle were searched prior to and after transport for weapons and contraband which met with negative results. The applicant is to reappear in the City of Watertown Court on 3 August 2015 at 1000 hrs. The applicant was released on a DD Form 2708 at 1143 hrs. Military Police Desk Blotter, dated 27 November 2015, reflects the applicant was charged with Driving While Intoxicated (Civil) (Under Investigation); and Leaving Scene of an Incident Without Reporting (Civil) (Under Investigation). Offer of Plea Bargain, dated 15 March 2016, reflects the applicant agreed to the charge of DWAI. The charge of leaving the scene was amended and dismissed. Champion Town Court, dated 13 August 2015, reflects the applicant was charged with obstruct breath which was dismissed and harassment 2nd which he paid a fine of $125. Numerous Developmental Counseling Forms, for various acts of misconduct. Memorandum, Request for Independent Medical Review, dated 23 August 2016, reflects the applicant did not agree with the findings contained in DA Form 3947. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 19 April 2016, reflects the applicant was diagnosed with an Axis I for Z56.89-Other Problem Related to Employment and Axis III for Chronic Headaches/Neoplasm of the Pituitary Gland. The applicant was screened for PTSD, TBI and MST. Only his TBI screen was positive. However, he has been evaluated and cleared by TBI for TBI related problems. He does have ongoing headaches, but they are not associated with trauma. The applicant does have significant medical issues, and may be referred to MEB for those medical issues. However, it is a matter for the PA to address. It is beyond the scope of this evaluation. The applicant’s alleged misconduct, there is no evidence said behaviors were in any way influenced or caused by a physical or mental condition. The applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. Medical Evaluation Board Proceedings, dated 16 August 2016, reflect the following diagnosis: Migraines headaches with aura; Tension headaches; Occipital neuralgia. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; Champion Town Court document; offer of plea bargain; letter from the Office of U. S. Senator R. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities’ last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember’s date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (6) Paragraph 14-12c prescribes a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 family issues affected behavior and ultimately caused the discharge. The applicant claims the offenses leading to the discharge were minor and were dismissed before the discharge. The AMHRR indicates the applicant committed many discrediting offenses. 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 dismissal of charges is a procedural step, which is part of a normal process when an alternative forum is chosen. In this case, the applicant agreed to a Plea offer and admitted to guilt to DWAI. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial. 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 applicant was diagnosed in service with Adjustment Disorder and mild TBI that may mitigate the misconduct in the basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant’s Adjustment Disorder and mild TBI existed in service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and found the weight of evidence did not support any association between applicant’s Adjustment Disorder, TBI, and the basis of separation misconduct. Therefore, there was no mitigation for the misconduct that led to applicant’s 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 basis for applicant’s separation. b. Response to Contentions: (1) The applicant contends family issues affected behavior and ultimately caused the discharge. The Board considered this contention but concluded that applicant’s family issues did not support any change to applicant’s discharge. (2) The applicant claims the offenses leading to the discharge were minor and were dismissed before the discharge. The Board considered this contention but determined the weight of the evidence supports a conclusion that applicant committed many discrediting offenses that were the basis for applicant’s separation. 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 Adjustment Disorder and mild TBI did not mitigate the offenses of striking a telephone pole and attempt to flee the scene of the accident; arrest for domestic violence/harassment towards his wife; or failure to be at his appointed place of duty, 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. The discharge was both proper and equitable. (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 AR20210003117 1