1. Applicant’s Name: a. Application Date: 14 July 2020 b. Date Received: 16 July 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: 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, the discharge was improper because the applicant learned from the mistake that was made 7 years ago which was an isolated incident of misconduct. The applicant would like to return to military service in positions needed most as an active duty member if available or in the Reserve or a National Guard unit. The applicant believes a second chance is deserved. b. Board Type and Decision: In a records review conducted on 23 June 2023, 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: Unacceptable Conduct / AR 600-8-24, Chapter 4-2B / JNC / General (Under Honorable Conditions) b. Date of Discharge: 9 July 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 6 February 2013 (2) Basis for Separation: The applicant was informed to show cause for retention on active duty under the provisions of Army Regulation (AR) 600-8-24, paragraphs 4-2b (Misconduct, moral or professional dereliction, or interests of national security) for acts of personal misconduct and conduct unbecoming of an officer and for receiving adverse information filed in the Army Military Human Resource Record (AMHRR) in accordance with AR 600-37, due to the following reasons: On 6 March 2011, in Syracuse, New York, the applicant was intoxicated and assaulted an employee of a restaurant, returning the next day to intentionally damage the front door of the same restaurant, causing $7000 in damages and resulting in the applicant’s arrest by civilian authorities. On 26 August 2012, the applicant was intoxicated and assaulted a security guard at a service station in De Witt, New York, again resulting in the applicant’s arrest by civilian authorities. GOMOR, dated 23 January 2013, substantiates derogatory information, which is detailed above, permanently filed in the official military personnel file in accordance with AR 600-37, paragraph 3-4b. (3) Legal Consultation Date: NIF (4) Board of Inquiry (BOI): NIF (5) GOSCA Recommendation Date / Characterization: 9 April 2013 / General (Under Honorable Conditions) (6) DA Board of Review for Eliminations: Date NIF, the Army Board of Review for Eliminations considered the GOSCA’s request to involuntary separate the applicant for unacceptable conduct in accordance with AR 600-8-24, Chapter 4-2b. (7) Separation Decision Date / Characterization: 24 June 2013 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Appointment: 2 July 2010 / NIF b. Age at Appointment: / Education: 22 / Bachelor’s Degree c. Highest Grade Achieved / MOS / Total Service: O-2 / 35D, All Source Intelligence / 3 years, 8 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (27 March 2011 - 23 March 2012) f. Awards and Decorations: ARCOM, AAM-2, NDSM, ACM-2CS, GWOTSM, ASR, OSR, NATOMDL, CAB g. Performance Ratings: 25 January 2011 - 20 July 2012 / Best Qualified 21 July 2012 - 3 May 2013 / Do Not Promote h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 9 March 2011, reflects the applicant was apprehended for: assault NYPL 120.00 (Civil) (off post). i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214. 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 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers. (1) Paragraph 1-23, provides the authorized types of characterization of service or description of separation. (2) Paragraph 1-23a, states an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty, or the final revocation of a security clearance under DODI 5200.02 and AR 380-67 for reasons that do not involve acts of misconduct for an officer. (3) Paragraph 1-23b, states an officer will normally receive a general (under honorable conditions) characterization of service when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A separation under general (under honorable conditions) normally appropriate when an officer: Submits an unqualified resignation; Separated based on misconduct; discharged for physical disability resulting from intentional misconduct or neglect; and, for final revocation of a security clearance. (4) Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty. (5) Paragraph 4-2b, prescribes for the elimination of an officer for misconduct, moral or professional dereliction, or in the interests of national security. (6) Paragraph 4-20a (previously 4-24a), states an officer identified for elimination may, at any time during or prior to the final action in the elimination case elect one of the following options: (1) Submit a resignation in lieu of elimination; (2) request a discharge in lieu of elimination; and (3) Apply for retirement in lieu of elimination if otherwise eligible. 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 “JNC” as the appropriate code to assign commissioned officers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4-2b, unacceptable conduct. 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 AMHRR, the issues, and documents submitted with the application were carefully reviewed. The applicant contends, in effect, the discharge was improper because the applicant learned from the mistake that was made 7 years ago which was an isolated incident of misconduct. AR 600-8-24, paragraph 4-2, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for an elimination from the Army. The AMHRR reflects the applicant had two separate incidents. The applicant desires to rejoin the Military Service. If the applicant desires to rejoin the military, local recruiters can determine eligibility to reenlist. Recruiters can best advise a former service member as to the needs of the Army at the time and are required to process waivers of reentry eligibility. 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 that the applicant has the following potentially-mitigating diagnoses: The applicant was diagnosed in-service with Adjustment Disorder. The applicant's VA records show a recent PTSD diagnosis, but documentation is void of needed information. (2) Did the condition exist or experience occur during military service? Yes. The applicant was diagnosed in-service with Adjustment Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that without clarification on the military related trauma, the recent listing of PTSD cannot be applied. However, even being considered under liberal consideration, assault and willful destruction of property is not a progression or sequela of trauma. In regard to the in-service diagnosis, assault and willful destruction of property is also not a progression or sequela of adjustment difficulties. Additionally, an Adjustment Disorder does not render an individual unable to make conscious choices understanding right from wrong and potential consequences. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the available evidence did not support a conclusion that the applicant’s PTSD and Adjustment Disorder outweighed the basis for applicant’s separation – the applicant was intoxicated and assaulted an employee of a restaurant, returning the next day and intentionally causing $7000 in damages, and the applicant was intoxicated and assaulted a security guard at a service station, both resulting in the applicant’s arrest by civilian authorities – for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends, in effect, the discharge was improper because the applicant learned from the mistake that was made 7 years ago which was an isolated incident of misconduct. The Board considered this contention and determined it does not outweigh the nature and severity of the applicant’s misconduct. c. The Board determined 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 available evidence did not support a conclusion that the applicant’s PTSD and Adjustment Disorder outweighed the basis for applicant’s separation – the applicant was intoxicated and assaulted an employee of a restaurant, returning the next day and intentionally causing $7000 in damages, and the applicant was intoxicated and assaulted a security guard at a service station, both resulting in the applicant’s arrest by civilian authorities. The Board considered the applicant’s contentions of impropriety and inequity and determined there was insufficient evidence of any arbitrary or capricious action taken by the Command. 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. Therefore, the applicant’s GD was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to HD. (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) As there is no RE-code listed on the applicant’s discharge paperwork, due to having been an Officer, no upgrade actions are required for this item. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No Change b. Change Characterization to: No Change c. Change Reason / SPD code to: No Change d. 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 AR20210006332 1