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 applicant requests an upgrade of an uncharacterized discharge, however, the applicant's discharge reflects a bad conduct discharge. The request is construed as a request to upgrade his bad conduct discharge to honorable. The applicant seeks relief contending, in effect, the discharge is inequitable because it was based on one incident in his 11-year career with no other adverse action. He has received numerous awards and achievements including two good conduct medals which is proof this is not his normal character. He has been candid every step of the way. The military was unaware of anything which occurred until he and his spouse decided to get help. They received recommendations from their church on how to handle the situation. The applicant went to his chain of command to inform them of what he and his family underwent and how they were seeking help first in the civilian sector. It was not until after Child Protective Services (CPS) was involved, the applicant learned he was being charged with domestic violence. The applicant states, he is very sincere and regrets his past actions. The applicant has willingly and eagerly accepted responsibility for those actions by going through the necessary required evaluations, assessments and the recommended counseling and treatment. The applicant successfully completed several classes and training through the Family Advocacy Program and completed Dependency 101, Father Engagement, Parent-Child Interaction Therapy, and Physiological Evaluation requested by the civilian courts. The applicant participates with his family in counseling with H. S. and Family Foundations Counseling. It was not an easy process but the applicant did what was needed in order to be reunited with his children. Child Protective Service of Peirce County, in Washington State received results of all the classes and training he completed and updates along the way. The courts were informed the applicant was found to be competent, caring and more at ease in dealing with stressful situations leading to the dismissal of the dependency cases. During the court-martial the applicant felt overwhelmed and stressed and what applicant thought was best at the time. The judge asked the former service member several times whether this was corporal punishment verses discipline; the applicant was flustered and did not quite understand the difference. The former service member's defense attorney told the applicant before trial, if he took the plea deal he would have to convince the judge he had done these things as a form of punishment. The applicant decided to go with the plea deal because he feared the alternative of being away from his family for a long time. The individual charges could have resulted in two to three years in confinement. The applicant was overwhelmed by the situation, but told the judge he agreed he had done these things with no explanation as to whether there was anger. The judge asked him several times to make sure what he was saying was accurate. The applicant states, he should have asked him to explain or ask for a break to gather his thoughts. Later, the judge explained to the applicant he did not believe he was guilty, but since it was brought to him, he had to do something. The judgement was better than the applicant hoped for; though he was not happy. The plea deal was for eight months in confinement, but the judge only gave him 90-days confinement, which he only served 75 days due to good conduct. The final weeks in confinement he was moved to a more trustworthy area of the prison where he had more freedom and earned work abatement. The Army has changed the former service member's life for the better and has helped him to mature, and to always have his best foot forward. He is not sure if it is an option, but he desires to have the opportunity to return to active duty and finish what he started. In a records review conducted on 3 March 2022, and by a 3 - 2 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: Court-Martial, Other / AR 635-200, Chapter 3 / JJD / RE-4 / Bad Conduct b. Date of Discharge: 29 April 2016 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: NIF (2) Adjudged Sentence: NIF (3) Date/Sentence Approved: NIF (4) Appellate Reviews: NIF (5) Date Sentence of BCD Ordered Executed: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 October 2013 / 3 years b. Age at Enlistment / Education / GT Score: 27 / HS Graduate / 108 c. Highest Grade Achieved / MOS / Total Service: E-4 / 56M10, Chaplain Assistant / 9 years, 1 month, 16 days d. Prior Service / Characterizations: USAR, 12 February 2005 - 11 February 2013 / NIF (Concurrent Service) RA, 3 January 2007 - 21 April 2008 / HD RA, 22 April 2008 - 30 September 2013 / HD e. Overseas Service / Combat Service: SWA / Iraq (8 December 2005 - 28 November 2006) f. Awards and Decorations: ARCOM, JSAM, AAM-2, JMUA, AGCM-2, NDSM, GWOTSM, ICM-2CS, ASR, OSR, AFRMM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Two Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Confined by Military Authorities (CMA)," effective 2 June 2015; and From "Confined by Military Authorities (CMA)" to "Present for Duty (PDY)," effective 14 August 2015. Enlisted Record Brief, dated 2 May 2016, reflects the applicant was flagged on 6 January 2015 for adverse action and on 11 May 2015 for weight control. He was reduced in rank from E-4 to E-1, on 14 August 2015. i. Lost Time / Mode of Return: 73 days CMA, (2 June 2015 - 14 August 2015) / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; two third-party letters; CARE Evaluation; Certificate of Completion for Family Anger Control Training; Certificate of Achievement for Dependency 101; Certificate of Completion for Impact On Children; five Superior Court of Washington Declarations; Superior Court of Washington Dependency Review. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states he has successfully completed all the required evaluations, assessments and recommended counseling and treatment. 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), dated 25 September 2019, 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. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization. (4) Paragraph 3-11 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing SJA. 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 "JJD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 3, Court-Martial, Other. f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant's AMHRR is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. The applicant's AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty). The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 3, by reason of Court-Martial, with a characterization of service of bad conduct. The Board is empowered to change the discharge only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. The applicant contends the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service. The applicant contends family issues affected behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. 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 601-210, the applicant was appropriately assigned an RE code of "4." An RE code of "4" cannot be waived, and the applicant is no longer eligible for reenlistment. The applicant contends he has successfully completed all the required evaluations, assessments and recommended counseling and treatment. 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. The third party statements provided with the application speak highly of the applicant. They all recognize the applicant's hard work while serving in the Army and good conduct after leaving the Army. 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. The applicant was diagnosed in service with chronic PTSD that could mitigate applicant's basis for separation. (2) Did the condition exist or experience occur during military service? Yes. The applicant was diagnosed in service with chronic PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? No. After applying liberal consideration, the Board's Medical Advisor opines that the misconduct that led to applicant's separation is not associated with PTSD since there is no nexus between applicant's PTSD and applicant's child abuse, kidnapping, or killing a puppy that were the basis for 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 the event which led to the discharge from the Army was an isolated incident. The Board considered this contention but found the weight of the evidence supported a conclusion that the applicant's misconduct was not an isolated incident, but rather occurred over a prolonged period of time, and continued even after receiving therapy resulting in the court martial. (2) The applicant contends good service, including a combat tour. The Board considered the applicant's length and quality of service and combat service during the proceedings. 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 applicant's misconduct of child abuse, kidnapping, and killing a puppy, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (3) The applicant contends family issues affected behavior and ultimately caused the discharge. The Board noted the applicant's assertion of civilian counseling outside of the military during the proceedings. The Board determined that the Army has many legitimate avenues available to service members requesting assistance with family issues and this contention did not support any change to the applicant's discharge. (4) The applicant desires to rejoin the Military Service. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings but concluded that the applicant's RE code is appropriate, proper and equitable. (5) The applicant contends he has successfully completed all the required evaluations, assessments and recommended counseling and treatment. The Board considered this contention during proceedings but concluded that all post-service accomplishments do not warrant any change to applicant's discharge. (6) The third party statements provided with the application speak highly of the applicant. The Board considered these third party statements during proceedings. c. The majority of 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 majority voted not to change the applicant's characterization of service because, despite applying liberal consideration, the applicant's PTSD or additional BH conditions of Physical Child Abuse, Child Neglect, Parent-Child Problem, nor Partner Relational Problem did not mitigate the offenses of child abuse, kidnapping, or killing a puppy, nor was any change appropriate because of impropriety, inequity or clemency. 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 AR20210003178 1