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, an upgrade would allow the applicant to receive benefits from the Department of Veterans Affairs. The applicant states suffering from PTSD, which could explain the behavior at the time of the incident which led to applicant's discharge. In a records review conducted on 9 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 / AR 635-200, Chapter 14- 12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 6 May 2005 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 April 2003 / 3 years b. Age at Enlistment / Education / GT Score: 31 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-5 / 11B10, Infantryman / 13 years, 1 month,16 days / block 12e, Total Prior Inactive Service, of the current DD Form 214 incorrectly includes a break in service. The applicant's previous DD Form 214 reflects applicant's discharge was effective 12 April 2002. Block 12d, Total Prior Active Service should reflect 11 years, 1 month and 2 days. d. Prior Service / Characterizations: DEP, 8 January 1991 - 4 March 1991 / NA USMC, 5 March 1991 - 12 April 2002 / HD (Break in Service) e. Overseas Service / Combat Service: SWA / Afghanistan (7 June 2003 - 24 April 2004); Iraq (15 July 2004 - 19 March 2005) f. Awards and Decorations: BSM, PH, MSM, JSCOM, AAM, NMCAM, AGCM, MCGCM-2, NDSM-2, GWOTEM, GWOTSM, ASR, SSDR-3, JMUA g. Performance Ratings: April 2003 - March 2004 / Marginal h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Court No. 24, dated 29 September 2004. The applicant was found guilty of six specifications: Charge I Article 93 UCMJ, two specifications, dismissed with prejudice on motion of Trial Counsel. Charge II Article 128, UCMJ: Plea, guilty Specification 1: Did, at or near First Base Shkin, Afghanistan, between on or about 1 September 2003 and 30 September 2003, unlawfully grab Specialist B. around the neck with applicant's hands. Specification 2: Did, at or near Fire Base Shkin, Afghanistan, between on or about 1 September 2003 and 30 September 2003, unlawfully tackle and choke Private First Class. S., Jr. on the neck with applicant's forearm. Specification 3: Did, at or near Gardez, Afghanistan, between on or about 1 September 2003 and 30 September 2003, unlawfully strike Specialist G. in the arm with a screwdriver. Specification 4: Did, at or near Fire Base Orgun-E, Afghanistan, between on or about 1 January 2004 and 31 January 2004, unlawfully strike Specialist G. in the head with applicant's fist. Specification 5: Did, at or near Fire Base Orgun-E, Afghanistan, between on or about 1 January 2004 and 31 January 2004, unlawfully strike Specialist S. in the back of the head and neck with applicant's hands and arms. Specification 6: Did, at or near Fire Base Orgun-E, Afghanistan, on or about 8 March 2004, commit an assault upon Sergeant G. by striking Sergeant G. in the face and head with a force likely to produce death or grievous bodily harm, to wit: by punching Sergeant G. repeatedly with applicant's fists. Plea: Guilty, except to the words with a force likely to produce death or grievous bodily harm, to wit, by punching Sergeant G. repeatedly with applicant's fists. To the excepted words: Not Guilty. [The specification was amended on motion of Trial Counsel to conform with the plea.] The sentence was adjudged on 26 May 2004. The accused was sentenced to be reduced to the grade of E-3, Private First Class; to forfeit $1,000 pay per month for 4 months; to be confined for 2 months; to serve an additional 2 months' hard labor without confinement; and to be reprimanded. On 29 September 2004, the convening authority, MG A., approved the sentence and reprimanded the applicant. i. Lost Time / Mode of Return: 48 days (CMA, 26 May 2004 - 13 July 2004) / Released from confinement. j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: Two DD Forms 214; DD Form 215 and DD Form 293. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with 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 waivable and nonwaivable 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 waivable. 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's record is void of the specific facts and circumstances concerning the events which led to applicant's discharge from the Army. The applicant's AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason of Misconduct, with a characterization of service of general (under honorable conditions). The applicant contends suffering from PTSD, which explains the behavior at the time of the incident which led to applicant's discharge. The applicant's AMHRR contains no documentation of PTSD diagnosis. The applicant did not submit any evidence to support the contention the discharge resulted from any medical condition. The AMHRR is void of a Mental Status Evaluation. The ARBA sent a letter to the applicant at the address in the application on 24 July 2019, requesting documentation to support a PTSD diagnosis but received no response from the applicant. 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 DoD and VA medical records and found that the applicant was diagnosed with PTSD that could mitigate applicant's basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed with PTSD by the VA and is 70% service connected. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor opined after reviewing the available information and applying liberal consideration, applicant's PTSD does not mitigate the Special Court Martial charges detailing the applicant's repeated assaults on individuals as the Board accepted basis for applicant's separation, because assault is not part of the sequela of symptoms associated with PTSD. (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 applicant's PTSD outweighed the Board's accepted applicant basis for separation. b. Response to Contention(s): (1) The applicant contends suffering from PTSD, which could explain the behavior at the time of the incident which led to applicant's discharge. The Board liberally considered this contention but determined that the applicant's PTSD did not mitigate the Board's accepted applicant basis for separation . (2) 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. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 applicant's PTSD did not excuse or mitigate the offenses of assault on multiple individuals that was the accepted basis for applicant's separation, 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, 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 AR20210003257 1