1. Applicant’s Name: a. Application Date: 21 December 2020 b. Date Received: 7 January 2021 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 Under Other than Honorable Conditions. The applicant requests an upgrade to Honorable and a narrative reason change, along with upgrading their separation and reentry codes. b. During their separation proceedings, the applicant requested for their service to be characterized as General (Under Honorable Conditions) for the sake of their 2 year old child and the ability to find a decent job. The applicant contends, nearly 5 years of Honorable service before the many stressors of relocating their family from Germany to Kansas at a very young age; their marriage became stressful and unhealthy and they had to overcome a lot of pain and sorrow for their personal mistakes; however, did their best at work and tried to be the best Soldier possible. They have accepted and completed their confinement and was never in trouble in the past. The applicant stated if they were true to themselves during those hard times, they would have never shown the indiscipline they displayed. Receiving a General discharge gives them the best chance to make something out of their life, for their family. c. Board Type and Decision: In a records review conducted on 08 December 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-4 / Under Other than Honorable Conditions b. Date of Discharge: 18 June 2020 c. Separation Facts: (1) Date of Notification of Intent to Separate: 5 May 2020 (2) Basis for Separation: The applicant was convicted of domestic violence towards their spouse in a SPCM. (3) Recommended Characterization: Under Other than Honorable Conditions (4) Legal Consultation Date: 14 May 2020 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: undated / Under Other than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: On 26 February 2019 / 3 year Reenlistment b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / 92 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92A10 Automated Logistical / 4 years and 9 months d. Prior Service / Characterizations: RA, 24 March 2015 – 25 February 2019, Honorable e. Overseas Service / Combat Service: Germany / None (14 September 2015 – 16 September 2017) f. Awards and Decorations: ARCOM, AGCM, NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) On 26 February 2019, the applicant completed their second reenlistment in the Regular Army for 3 years as a SPC. (2) The Enlisted Record Brief provides the applicant was married and promoted to SPC on 24 March 2017; they served overseas in Germany for two years and received both an Army Commendation Medal and their Army Good Conduct Medal. (3) On 11 July 2019, the spouse called MP to their home after locking themselves in the bathroom due to the altercation they were having with the applicant who was drunk. The spouse stated the applicant was in a bad mood all night and they did not know the applicant had been drinking. The spouse mentioned how originally, they were arguing, then the applicant knocked a pot of food on the floor and threw their dip spit bottle all over the spouse. (4) Six Sworn Statements from the MPs and CID provides: (a) On 12 July 2019 at 0355 hours, SPC (MP) provides they responded on the scene with SSG, and no one answered, they radioed back to dispatch and the spouse opened the door shortly upset and crying. The spouse stated the applicant threw a bottle at them, spat on them, and threw the pan of food on the ground from the stove; the spouse explained they attempted to hide the gun; however, the applicant found it and hid it again. SSG radioed dispatch for another patrol and once they arrived, PFC stayed outside, while both themselves and SSG entered the house. The applicant was lying in bed and SSG tapped him about three times and the fourth time, the applicant begin yelling for them to get out. They told them to get up and come with them and the applicant arguing, while SPC advised them to take their hands from underneath the covers and they did so and proceeded to get out of bed. They stood up argumentative, stating the MPs would have to take the applicant down and begin to fight, as a result, they forced the applicant to the ground and down the stairs, and as the applicant was combative, they forced the applicant on the ground outside and walked them to the police car; however, the applicant begin to cry to see their child. Once the applicant agreed to relax, they took them back inside to see their baby and after doing so, the applicant went off again swearing at the MPs, realizing the applicant was not committed to remaining calm, they forced them down the stairs to the police car. The MPs asked the applicant to get in the car voluntarily to prevent them from hitting their head; however, the applicant continued to fight, and the three officers picked the applicant up and put them in the car and placed them in the seat belt. PFC was instructed to stay and obtain a statement from the spouse while they transported the applicant to the PMO. Once they arrived, they asked the applicant if they needed medical attention and the applicant said, “no”. (b) The same day at 0330 hours, SPC (MP) provides they went to the holding cell and gave the applicant their clothes and had the applicant get dressed. SPC returned and explained to the applicant they [SPC and PFC] were going to escort them to the interrogation room; in the interrogation room, SPC filled out DA Form 3831 (Rights Warning Procedure/Waiver Certificate) and then returned the applicant to the holding cell at 0350 hours. (c) PFC (MP) provides at 0017 hours, SSG and CPL received a call for physical domestic and approximately 20 minutes later, they were called out to the scene to assist. They arrived and the spouse was outside speaking to the officers. PFC was advised there was a firearm registered to the address and to remain outside while the other two officers went inside and moments later, they heard yelling coming from the applicant. The officers came out with the applicant was in their boxer’s briefs and being very uncooperative, physically jerking away from CPL, the applicant threw themselves to the ground, dragging CPL with them. PFC rushed over to assist in subduing the applicant by placing their knee in between their shoulder blades while SSG ensured the hand irons were double locked. PFC assisted SSG with picking the applicant up to their feet while CPL was bringing the police vehicle. The applicant was physically resisting attempts to place them in the passenger side rear seat of the patrol vehicle by locking their body in a rigid position. (1) The applicant stated they would not get in the vehicle without clothes on and continued to struggle with them. SSG told the applicant if they calmed down, they would allow the applicant to go back inside to get a shirt and some pants and say goodbye to their child in which they did; however, once SSG told them it was time to go, they became physically and verbally uncooperative by pulling away from SSG and yelling. The officers dropped the clothing in the room and escorted the applicant from the house. When they were at the patrol car, the applicant refused to get in, then CPL secured their feet and pulled them through the rear seat. They fought to get the seat belt on the applicant and PFC was advised to remain with the vehicle, while SSG and CPL reentered the house to search for the weapon (Glock, 9mm, pistol) in the applicant had hidden. While waiting, the applicant had unfastened their seat belt and began kicking the interior rear passenger door and banging their head against the driver side rear seat window doors, also head-butting the cage. SSG and CPL came back without locating the weapon and transported the applicant to the PMO while PFC stayed behind to collect an information worksheet and sworn statement from the spouse. The spouse appeared to be emotionally distraught, crying when them and the INV spoke with them. (2) The spouse had an idea where the weapon was and found it in the living room concealed in the ottoman. The spouse maintained the weapon, although, planned to have it moved to their employer’s home. Once PFC finished the worksheet, and starting the sworn statement, the spouse requested to do so later in order for them to put their child back to bed. The spouse in the verbal statement stated at approximately 1900 hours, they were in the dining room working and the applicant came from downstairs and was immediately yelling at the child, telling them to pick up their toys. The spouse stated they did not pay attention to what happened exactly as she left the house to run errands and returned at around 2015 hours. When they returned, the applicant asked if the spouse was mad at them, and the spouse did not respond which angered them. The applicant threw their juice on the spouse and dumped their chewing tobacco spit bottle at them. They went upstairs to shower, when they were out, the applicant questioned them about where their pistol was located. The spouse did not respond to the applicant, continued into bed to finish their work. The applicant came into the bedroom and told the spouse to clean up the mess in the kitchen and they refused. The applicant threw the spouse’s phone and laptop against the wall of them room. PFC verified and the laptop was in multiple pieces in the bedroom. They also noticed the hole, approximately 6 inches in diameter, located midway in the door. The spouse said a shelf was ripped off the wall, but PFC did not see it. The spouse continued, stating the applicant started to toss clothes and other items around and the spouse went in after they left to try to clean it up and the applicant reentered the closet and begin to yell at the spouse. The spouse went into the bathroom to get away from the applicant and the applicant followed. The applicant threw liquor on the spouse and pushed them into the tub where they threw the liquor bottle at the spouse. The spouse used the applicant’s phone to call theirs and found their phone, as well as the pistol under the applicant’s pillow. The spouse grabbed the pistol and ran into the bathroom. The applicant followed the spouse and pushed their way into the bathroom and took back the weapon. The spouse locked the bathroom door and contacted Fort Riley Police using the applicant’s phone. The spouse’s right cheek was flushed and appeared to be swollen, however they refused treatment. The INV took pictures of the house and the spouse. (d) SSG (MP) provides a statement stating they were one of the officers to answer the physical domestic 911 call at the applicant’s residence, along with CPL and no one answered. After dispatch advised the spouse to answer the door for the MPs, they spoke with the spouse who stated the applicant spat on them and poured their “Dip” spit on them, threw a pot of food on the floor, and broke their phone. The spouse stated they took and hid their husband’s gun away from them, but the applicant found it and hid the gun again. SSG radioed for another patrol, and when PFC arrived, they advised them to remain with the spouse. After a failed attempt to wake the applicant up stating, “Fort Riley Police”, SSG tapped the applicant on the shoulders while yelling “Hey” and finally the applicant woke up and asked why where we in their home. SSG stated the applicant needed to come with them; however, the applicant told them they were naked and SSG asked where their clothes was so they could get dressed, but the applicant refused to cooperate and insisted the MPs would have to take them down. SSG gave the clear and they had to take the applicant down twice, with the applicant drawing blood from SSG’s face. The applicant was yelling lewd and derogatory language, calling SSG a “N____r” and by calling CPL “a b___h ass private”. All three officers were attempting to place the applicant in the patrol car, placed them in the seatbelt and closed the door. As they were heading back inside to speak to the spouse prior to clearing the scene, they heard a loud slamming sound and saw the applicant kicking the patrol vehicle door and banging their head against the vehicle door from the inside. They contacted the Watch Commander who advised them to return to the station. The spouse declined medical attention and once at the holding cell the applicant declined medical attention as well. (e) The applicant provides a statement stating on 12 July 2019 at around 0100, the MPs responded to the call made from their spouse argument they had. The applicant remembered SSG along with a CPL who entered while they were asleep in their bed. They were awakened by the two and felt harassed and disrespected due to them being in their underwear. They asked the two officers to exit downstairs so that they could put clothes on; however, they became humiliated and also disrespectful towards the officers. The applicant stated they resisted at the same time warning the officers that they have a profile for their right hand, while being handcuffed they broke a humidifier in the room and as a result, the applicant was cut on the leg. The officers tightened the handcuffs until their wrists were swollen and circulation was cut off. They were forced down the stairs and the applicant continued to stress allow them to put on clothes. They were taken outside and handled to the grass where the PFC then came and dropped their knees on their jaw, causing a dislocated feeling pain. The applicant also stressed to the officers, it was too much pressure, and they could not breathe. The officers took them back inside and allowed them to see their child, while handcuffed and to put on their clothes; they never had a chance to put any on and was taken to the back of the police car. They could not feel their hands due to the swelling and profile in which they were at the time, currently going to therapy for. (f) INV provides a sworn statement of the details listed above. Additionally, they took pictures of the damages and mess throughout the house, as well as the spouse’s injury. INV provides a sworn statement stating at approximately 1400 hours, they received a call from the applicant, and they stated they felt they were mistreated by the MPs and wanted to make a report/complaint. INV spoke with their OIC who advised them of their legal rights again and collect a statement from them. The INV attempted to reach out to legal, but no one answered. They prepped the audio record and proceeded to interview the applicant and the applicant waived the rights and stated they felt disrespected by the MPs. The applicant stated their spouse called the MPs on them for playfully throwing an empty bottle at their face. The applicant stated they was upstairs sleeping when they were awakened by MPs telling the applicant they need to get up and go with them. The officers would not allow the applicant to get dressed. The INV explained their protocols for safety purposes. The applicant stated because they felt disrespected, they became disrespectful. They stated the MPs broke their humidifier. The applicant stated they informed the MPs of their profile for their wrist and the cuffs were hurting their wrist. The applicant stated they had a knee on their jaw which caused them much pain and at one point the pressure made it really hard for them to breathe. The applicant stated the MPs force was excessive. The applicant stated they did not hit any MPs due to their hands being in handcuffs. (5) On 27 August 2019, CID provides the final report for the incident occurring on 11- 12 July 2019; listed offenses for the applicant are domestic violence, criminal restraint, assault on law enforcement officer, damage to private property, resisting apprehension, inappropriate conduct towards a noncommissioned officer, and drunk and disorderly conduct. MP was called to the home of the applicant and their spouse due to a physical altercation where the applicant pushed their spouse into a closet, prevented them from leaving the closet, threw a plastic liquor bottle at them which struck them in the face, and poured tobacco spit on them. During the altercation, the applicant caused damaged to a door. MP approached the applicant in which they became combative and resisted arrest, causing injuries to three military police officers. The applicant sustained a minor injury during apprehension. All individuals refused medical treatment. The applicant was apprehended and taken to Fort Riley Military Police Department, where they were advised of their legal rights, in which they invoked. The applicant was processed and released to their unit (SFC). On 20 August 2019, SJA opined probable cause existed to title the applicant with Assault. The applicant was interviewed by the CID INV, with 4 pages of follow-up questions further detailed in the report. (6) On 15 January 2020, the applicant entered into a Plea Agreement pursuant to Rule for Courts-Martial (RCM) 705 and Article 53a, UCMJ; the applicant agreed to the four charges and the two charges they pleaded not guilty to, were dismissed upon the acceptance of their guilty pleas by the Military Judge; on 23 January 2020, the plea agreement was approved. (7) On 5 March 2020, the applicant was sentenced in a Special Court-Martial (SPCM) in violation of Article 87a, UCMJ (resist apprehension by a military policeman), Article 91, UCMJ (disrespectful language towards a noncommissioned officer); Article 109, UCMJ (destruction of property valuing $1000 or less); Article 128, UCMJ (assault of a spouse); they were sentenced to 27 days in confinement; their request for clemency, reducing the sentence from 27 days to 15 days was disapproved; the judgement was entered. (8) On 10 March 2020, A Suspend Favorable Personnel Actions (FLAG), was flagged on their record for field-initiated involuntary separation (BA). (9) On 18 March 2020, the company commander counseled the applicant on the recommendation for involuntary separation as part of their post-trial agreement; they agreed and did not provide a statement on their behalf. (10) On 26 March 2020, a Report of Medical History, provides the applicant reported the inability to sleep many nights, feelings of depression, and having been seen by BH. (11) On 5 May 2020, the company commander notified the applicant of their intent to separate them under provisions of AR 635-200, Chapter 14-12c, Misconduct (Serious Offense), with a recommended characterization of service of Under Other than Honorable Conditions. The applicant acknowledged receipt. (a) On 8 May 2020, in a memorandum for record, the defense counsel states a substantial error has occurred in the processing of the applicant’s administrative separation due to the applicant was denied the opportunity to receive a medical/mental status evaluation. Counsel states the administrative separation proceedings should be stayed until the applicant has been provided their statutory right to a medical/mental status evaluation and the ability to fully consult with counsel regarding those evaluations. (b) On 14 May 2020, elected to speak with counsel. Defense counsel acknowledged consulting with the applicant on their separation. The same day, the applicant provided a statement on their behalf, requesting a characterization of service of General (Under Honorable Conditions). The applicant apologized for their actions and the things they have done wrong. They have tried to own up to their mistakes and redeem themselves. They request a general characterization of service to allow a better chance at finding a decent job so they can support their child. Their intentions was to never risk their career since they have worked and still work hard for. The applicant chose to be a Soldier because there was nothing better for them back home than serving their country. They proudly joined the military with a lot of support from family with everyone proud of their service. The Army instilled a lot of pride and professionalism in them which they will always be grateful for. The applicant states their marriage became stressful and unhealthy over time due to them both being young, they had just moved from Germany to Kansas, which resulted in many stressors to face. The applicant states if they would have stayed true to themselves at hard times, they would have never showed their undisciplined side. They wish they could take everything back and continue to focus on their career because their 2-year-old child who they love very much and want to take care of. As a parent, they want to provide and ensure that their child has the best life possible; they are requesting a general discharge so they can have a chance to make something out of their life for their family. They have gotten along well in the Army and what it stands for; however, they regret every bad choice made. The applicant states March marked their 5th year in the Army, and they had never been in any trouble until last year. They accepted and completed their confinement time early this year. There was a lot of pain and sorrow they had to overcome from their mistakes and simply not setting the right example. The applicant states their personal issues may have received the worst part of them; however, they always did the best they could at work and tried to be the best Soldier they could be. (12) On 25 March 2020, the applicant received an incomplete separation medical examination at Irwin Army Community Hospital (IACH), Fort Riley, KS with a Physician note, “Physical examination not completed today due to COVID-19 patient provider distancing and guidance by HQDA. Reviewed patient records with no concerns” and marked them qualified for service/separation. (13) On 15 and 20 May 2020, the battalion and brigade commanders concurred with separating the applicant with a characterization of service of Under Other than Honorable Conditions. Although undated, the appropriate separation authority approved the discharge and directed the applicant be separated with a characterization of Under Other than Honorable Conditions. (14) A DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects the applicant was discharged accordingly on 18 June 2020, with 5 years, 3 months, and 5 days of total service. The applicant has completed their first full term of service. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: On 9 April 2020, the Behavioral Health Provider at Irwin Army Community Hospital (IACH), Fort Riley, KS, notes the applicant meets the medical retention requirements IAW AR 40-501, and does not require a medical board for psychiatric purposes. Although, the applicant does have behavioral health symptoms, they do not have a diagnosis that would prevent them from proceeding in the process of administrative separation. The applicant is cleared for Chapter 14 separation. This opinion is based solely on the clinical judgment of the provider and does not constitute a forensic legal opinion as it pertains to criminal responsibility, state of mind at the time of the alleged behavior that is the basis for the administrative separation, competency, or other determinations typically required by courts. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for Correction of Military Record); DD Form 214 (Certificate of Release or Discharge from Active Duty) 6. POST SERVICE ACCOMPLISHMENTS: None submitted with this 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), 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) 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. (2) 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. (3) An Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (4) Chapter 1 (General provisions) sets policies, standards, and procedures to ensure readiness and competency of the force while providing for the orderly administrative separation of Soldiers, it provides in pertinent part: (a) When a separation is ordered, the approved proceedings will be sent to the commander who has the Soldier’s records for separation processing. The original copy of the proceedings will be filled in the permanent part of the Soldier’s official personnel record. (b) Army leaders at all levels must be continually aware of their obligation to provide purpose, direction, and motivation to Soldiers. It is essential that Soldiers who falter, but have the potential to serve honorably and well, be given every opportunity to succeed. Except as otherwise indicated, commanders must make maximum use of counseling and rehabilitation before determining that a Soldier has no potential for further useful service and ensure it occurs prior to initiating separation proceedings for reason to include Minor Disciplinary Infractions (14a) or a Pattern of Misconduct (14-12b). (5) 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. 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. 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. (6) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army’s best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. 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: (1) RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. (2) 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. (3) 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. g. Manual for Courts-Martial (2008 Edition), United States, states military law consists of the statutes governing the military establishment and regulations issued thereunder, the constitutional powers of the President and regulations issued thereunder, and the inherent authority of military commanders. Military law includes jurisdiction exercised by courts-martial and the jurisdiction exercised by commanders with respect to nonjudicial punishment. The purpose of military law is to promote justice, to assist in maintaining good orders and discipline in the Armed Forces. (1) Article 87a (resist apprehension by a military policeman), states in subparagraph, the maximum punishment is a bad conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year. (2) Article 91 (disrespectful language towards a noncommissioned officer), states in subparagraph, the maximum punishment is forfeiture of two-thirds pay for 3 months and confinement for 3 years. (3) Article 109 (destruction of property valuing $1000 or less), states in subparagraph, the maximum punishment is a bad conduct discharge, forfeiture of all pay and allowances, and 1 year confinement. (4) Article 128 (assault of a spouse), states in subparagraph, the maximum punishment is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years. h. Title 38, U.S. Code, Sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual’s medical condition, although not considered, medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by the agency. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. a. The applicant requests an upgrade to Honorable, in addition to a narrative reason change, and upgrading their separation and reenlistment codes. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. b. A review of the available evidence provides the applicant reenlisted in the RA as a SPC. They served 2 years overseas in Germany and was awarded an Army Commendation Medal and the Army Good Conduct Medal. The applicant was flagged (Suspend Favorable Personnel Actions (FLAG)) for involuntary separation in March 2020. c. The applicant was subject to a SPCM in March 2020 for assaulting their spouse, resisting apprehension by military police, disrespectful language towards a noncommissioned officer, destruction of property valuing $1000 or less; they entered a plea agreement admitting guilt of four charges and the military judge approved; they were sentenced to 27 days in confinement in which the applicant completed. d. During their separation proceedings, the applicant requested for their service to be characterized as General (Under Honorable Conditions) for the sake of their 2-year-old child and the ability to find a decent job. The applicant contends, nearly 5 years of Honorable service before the many stressors of relocating their family from Germany to Kansas at a very young age; their marriage became stressful and unhealthy and they had to overcome a lot of pain and sorrow for their personal mistakes; however, did their best at work and tried to be the best Soldier possible. They have accepted and completed their confinement and was never in trouble in the past. The applicant stated if they were true to themselves during those hard times, they would have never shown the indiscipline they displayed. Receiving a general discharge gives them the best chance to make something out of their life, for their family. The applicant consulted with counsel. e. Defense counsel provides a substantial error has occurred in the processing of the applicant’s administrative separation because the applicant was denied the opportunity to receive a medical examination and mental evaluation after receiving their separation notice in May 2020. The AMHRR provides the applicant received a Medical and Mental Status Evaluation in April 2020. f. Chapter?14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 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. g. Published DoD guidance indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 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/experiences: Intimate Partner Violence (Note-Marital Problem and Adult Physical Abuse fall under IPV). (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found the IPV occurred during active service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that, based on the available information, there are no mitigating BH conditions or experiences. The applicant has a history of IPV. Record review indicates that the applicant was the alleged perpetrator in 3 of the four instances of IPV documented by FAP. In each of these IPV incidents, the applicant had been drinking heavily. During one of IPV incidents, it is unclear who the perpetrator was. The applicant was cut on the right wrist during this incident. He refused to talk about it, so it is not clear if he was the victim of IPV or if his spouse ended up cutting him in self-defense. In any event, given that the majority of the IPV cases identified him as the alleged perpetrator, there is no mitigation offered under liberal consideration. (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): The applicant requests an upgrade to Honorable and a narrative reason change, along with upgrading their separation and reentry codes. The Board considered this contention and determined that a change to the applicant’s characterization of service is not warranted because there were no behavioral health mitigating factors for the board to consider. Thus, the applicant was properly and equitably discharged c. The Board determined that the discharge is, at this time, proper and equitable, considering 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 voted not to change the applicant’s characterization of service because, there were no mitigating factors for the Board to consider. Since the applicant was convicted of domestic violence towards their spouse, Uncharacterized is 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, as 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 AR20210007168 1