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, after becoming service connected through the VA in 2018, applicant believes it more than justifies his reasoning for discharge back in 2011. The initial discharge was because of a PTSD related incident after returning from Afghanistan in 2010. Since 2013, applicant has worked at a veteran service organization and continues to work there today, thus proving his continuous dedication to his country. He hopes the Board is able to review his case, observing his service to this country and understand the mistakes he made. In a records review conducted on 11 February 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: 28 June 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 23 March 2011 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 26 September 2010, the applicant assaulted and threatened to kill his wife. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 31 May 2011 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 14 June 2011 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 September 2008 / 5 years b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 92 c. Highest Grade Achieved / MOS / Total Service: E-4 / 31B10, Military Police / 2 years, 9 months, 15 days d. Prior Service / Characterizations: RA, 11 September 2008 - 25 September 2010 / HD (Concurrent Service) e. Overseas Service / Combat Service: SWA / Afghanistan (14 May 2009 - 14 May 2010) f. Awards and Decorations: UNAM, VUA, NDSM, ACM-2CS, GWOTSM, ASR, NATOMDL, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: City of Colorado Springs Police Report, dated 26 September 2010, reflects the applicant was charged with Felony Menacing, a Class 5 Felony and 3rd Degree Assault, a Class 1 Misdemeanor. Two Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Confined by Civil Authorities (CCA)" effective 26 September 2010; and, From "Confined by Civil Authorities (CCA)" to "Present for Duty (PDY)," effective 28 September 2010. Developmental Counseling Form, dated 28 September 2010, reflects the applicant was counseled for being involved in a domestic violence case with his spouse. The applicant was ordered to have no contact with his spouse. Army Substance Abuse Program (ASAP) Enrollment form, dated 30 September 2010, reflects the applicant was command referred to ASAP. Stipulation for Deferred Judgment and Sentence and Court Order, dated 28 February 2011, reflects the District Attorney and the applicant both personally jointly agree and stipulate the Court shall, following his pleading guilty to Assault in the Third Degree, defer sentencing on such count for a period of two years. Report of Behavioral Health Evaluation, dated 22 March 2011, reflects the applicant was mentally responsible and had the mental capacity to understand and participate in the proceedings. The applicant was cleared for any administrative actions deemed appropriate by command. i. Lost Time / Mode of Return: 2 days (Confined by Civil Authorities, 26 September 2010 - 28 September 2010) / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of his VA Rating Decision, dated 23 February 2018, which reflects he was granted 30 percent service connection for post-traumatic stress disorder with alcohol use disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; VA Rating Decision; PO# 281-237; two third party letters; DD Form 214. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states he has worked at a veteran service organization which proves his continuous dedication to his country. 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 to be 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 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 he was diagnosed with PTSD by the VA. The applicant provided a copy of his VA disability rating indicating he was granted 30 percent service connection for PTSD with alcohol use disorder. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 22 March 2011, which indicates the applicant was mentally responsible and recognized right from wrong. The MSE does not indicate any diagnosis. The MSE was considered by the separation authority. The applicant contends he has obtained employment. 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. One letter recommends the applicant's reentry into the military and the other describes the applicant's change in behavior after his return from Afghanistan. 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 the applicant is diagnosed and service connected by the VA with PTSD which could mitigate applicant's basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board Medical Advisor found applicant's PTSD is service connected by the VA and it existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board' Medical Advisor found applicant's medical record reveals that the assault and threat to his spouse was the escalation of an argument over applicant's concerns that the applicant's spouse was cheating on him. Even after applying Liberal Consideration, the Board's Medical Advisor found there is no evidence that the incident was associated with applicant's PTSD and therefore, applicant's assault and threat to kill his wife which are the basis of separation are not mitigated. (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB's application of liberal consideration, the Board determined that the applicant's assault and threat to his wife outweighed the applicant's PTSD for the reasons listed in (3) above. b. Response to Contentions: (1) The applicant contends the narrative reason for the discharge needs to be changed. In light of the current evidence of record, the Board considered this contention but concluded the applicant's narrative reason for the discharge was proper and equitable. (2) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board considered this contention but concluded that applicant's assault and threat to kill applicant's wife which are the basis of separation are enough to conclude that the discharge was both proper and equitable. (3) The applicant contends he was diagnosed with PTSD by the VA. The Board liberally considered this contention, however, even after applying liberal consideration, the Board's Medical Advisor found applicant's PTSD did not outweigh applicant's assault and threat to kill his wife which are the basis of separation. (4) The applicant contends he has obtained employment. The Board considered this contention during deliberation but concluded this post service accomplishment was insufficient to warrant a change to the applicant's discharge. 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 did not outweigh the offenses of assault and threat to his wife. 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 AR20210003188 1