1. Applicant’s Name: a. Application Date: 7 April 2020 b. Date Received: 17 November 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: (1) The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. (2) The applicant seeks relief contending, in effect, they would like to use the Post 9/11 GI Bill. When they first enrolled for the Post 9/11 GI Bill they were approved and was later denied which created a debt balance. They served longer than their first term of their enlistment honorably by extending their contract. (3) They are approved for vocational rehabilitation through the Department of Veterans Affairs (VA); however, they would like to receive their Post 9/11 GI Bill benefits. Their medical records will provide information on having Post-Traumatic Stress Disorder (PTSD) and mental health issues while they were in the Army b. Board Type and Decision: In a records review conducted on 4 October 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) / Army Regulation 635-200, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 6 November 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 July 2018 (2) Basis for Separation: The applicant was informed of the following reasons: * on or about 24 October 2016, assaulted M____ B____ by pointing a firearm at that person's face * on or about 24 October 2016, assaulted M____ B____ by striking that person with an open hand * between on or about 12 October 2017 and on or about 27 November 2017, absented themselves from their unit (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 24 July 2018 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 8 August 2018 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 February 2014 / 3 years, 20 weeks b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 97 c. Highest Grade Achieved / MOS / Total Service: Specialist/E-4 / 88H10, Cargo Specialist / 3 years, 11 months, 18 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: (1) A DA Form 4187 (Personnel Action), dated 13 October 2017, reflects the applicant's unit reported a change in their duty status from Present for Duty to Absent Without Leave (AWOL), effective 12 October 2017. (2) A DA Form 4833 (Commander's Report of Disciplinary or Administrative Action) dated 9 November 2017, reflects the applicant's civil charges of Domestic Assault, Abduct by Force, brandishing a Firearm, and a Protective Order was issued. Block 10a (Commander's Remarks) states the applicant was scheduled to appear at the Circuit Court on 7 November 2017 and failed to appear. A failure to appear warrant has been issued. The applicant was reported as AWOL on 11 October 2017 and this case is being administratively closed. (3) A DA Form 4187 (Personnel Action), dated 14 November 2017, reflects the applicant's unit reported a change in their duty status from AWOL to Dropped from Rolls, effective 11 November 2017. (4) A DA Form 4187 (Personnel Action), dated 28 November 2017, reflects the applicant's unit reported a change in their duty status from Desertion to Confinement, effective 27 November 2017. (5) A memorandum, Joint Base Langley-Eustis, subject: Law Enforcement Report dated 28 November 2017, reflects the applicant's offenses as Desertion and AWOL. The Report Summary states the applicant was apprehended 27 November 2017 and is being held at a civil Detention Center. (6) A DD Form 458 (Charge Sheet) dated November 2017, reflects the applicant's charge of AWOL, in that they did on or about 12 October 2017 without authority, absent themselves from their unit and absent until on or about [27 November 2017]. (7) A memorandum, Joint Base Langley-Eustis, subject: (Law Enforcement Report) dated 19 December 2017, reflects the applicant's offenses of Abduct by Force, two charges of Domestic Assault, and Brandishing a Firearm. The Report Summary reflects the circumstances of the applicant's desertion and apprehension. The applicant was arrested on 2 November 2017 for two counts of Domestic Assault against a Cohabitant, Abduction and Brandishing a Firearm. The applicant was being held on bond at a regional civil jail for their next court appearance scheduled for 19 January 2018. (8) A DA Form 3822 (Report of Mental Status Evaluation) dated 3 June 2018, reflects the applicant's disposition determination as no duty limitations due to behavioral health reasons, meets medical retention standards, and is cleared for administrative action. (a) Section IV (Diagnosis) reflects the Behavioral Health diagnosis of adjustment disorder with Mixed Mood; PTSD (By History); Problems Related to Other Legal Circumstance; and Imprisonment or Other Incarceration. (b) Section VI (Recommendations and Comments for Commander) the Behavioral Health Provider states the Service Member (SM) can understand and participate in administrative proceedings and appreciate the difference between right and wrong. The SM meets the criteria for a psychiatric disorder (adjustment disorder) and is currently receiving medications to treat their mood at the jail. SM has a history of diagnosis of PTSD (from being shot in a robbery attempt) from 2015, for which she did not receive treatment. Current symptoms of that condition appear to be minimal. SM is psychiatrically cleared to proceed with this administrative separation. (9) A DA Form 4187 (Personnel Action), dated 13 July 2018, reflects the applicant's unit reported a change in their duty status from Confinement to Present for Duty, effective 12 July 2018. (10) A memorandum, 149th Transportation Company, subject: (Separation under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Paragraph 14-12c, Commission of a Serious Offense [Applicant]), dated 19 July 2018, notified the applicant of the initiating of action for separation. Reasons for the proposed actions are, assaulted M____ B____ by pointing a firearm at their face; assaulted M____ B____ by striking their face with an open hand; and between on or about 12 October 2017 and on or about 27 November 2017, m absented themselves for their unit. On the same day, the applicant acknowledged the separation notification, and that the applicant was advised of their Election of Rights. (11) A memorandum, 77th Transportation Brigade (Expeditionary), subject: (Separation under the Provisions of Army Regulation 635-200, Paragraph 14-12c, (Commission of Serious Offense) [Applicant]), dated 8 August 2018, the approving authority directed the applicant will be separated from the Army prior to the expiration of current term of service and their service be characterized as General (Under Honorable Conditions). (12) On 6 November 2018, the applicant was discharged accordingly, the DD Form 214 provides the applicant completed 3 years, 11 months, and 18 days of net active service this period. Block 18 (Remarks) reflects the applicant has completed first full term of service. i. Lost Time / Mode of Return: * AWOL, 12 October 2017 – 27 November 2017 / Apprehended by Civil Authorities * Confinement, 28 November 2017 – 12 July 2018 / Released from Confinement j. Behavioral Health Condition(s): (1) Applicant provided: (a) Eleven Standard Forms 600 (Chronological Record of Medical Care) reflecting the diagnosis of adjustment disorder with Anxiety and Depressed Mood; Acute Stress Reaction; PTSD; Antisocial Personality Disorder; and Adjustment Disorder with Mixed Disturbance of Emotions and Conduct. (b) VA Rating Decisions reflecting the diagnosis of PTSD with insomnia disorder (also claimed as anxiety and depression) as service-connected at 70-percent. (2) AMHRR Listed: MSE/BHE as described in previous paragraph 4h(8). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, DD Form 4, eleven Standard Forms 600, DD Form 214, VA documents, Honor Society Certificate and University Unofficial Transcript. 6. POST SERVICE ACCOMPLISHMENTS: enrolled at a university as a full-time student and is on the honor roll. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Title 10, U.S. Code, Section 1553, (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 U.S. Code, Section 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 (DoD) 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; Title 10 U.S. Code; Section 1553, DoD Directive 1332.41, and DoD Instruction 1332.28. d. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), dated 19 December 2016, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. (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) A Under Other Than Honorable Conditions Discharge is an administrative separation form the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court-martial. (4) Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. 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. Paragraph 14-12c (Commission of a Service Offense), stated 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. (5) Chapter 15 (Secretarial Plenary Authority), currently in effect, 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 14-12c, 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. 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): a. The Army Discharge Review Board considers applications for upgrade as instructed by DoD Instruction 1332.28. b. A review of the available evidence provides the applicant committed the serious offenses of domestic violence and aggravated assault by strangulation, when on or about 4 February 2019 they assaulted their spouse by strangulation with their hands. They completed 4 years and 5 days of their 6-year contractual obligation. (1) The available evidence provides the applicant underwent the required Medical Examination and Mental Status Evaluation as part of the separation process; however, the AMHRR provides a Mental Status Evaluation and Medical Examination with behavior health information that appears to have required a follow-up. The record is void of this documentation as well as documentation that indicates whether the applicant was command referred for the required Army Substance Abuse screening. (2) The applicant received a general (under honorable conditions) characterization of service rather than a discharge under other than honorable conditions, which is normally considered appropriate. c. Chapter 14 establishes policy and prescribes procedures for separation 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. e. 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: the applicant was diagnosed in-service with Adjustment Disorder, Acute Stress Disorder, PTSD, and Antisocial Personality Disorder. Post-service, the applicant is service connected for PTSD secondary to an October 2015 robbery with reported sexual harassment (MST). (2) Did the condition exist, or experience occur during military service? Yes. The applicant was diagnosed in-service with Adjustment Disorder, Acute Stress Disorder, PTSD, and Antisocial Personality Disorder. The applicant has reported sexual harassment (MST). (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined that although the applicant noted the AWOL was related to not wanting to attend court for the IPV charges, the service connected PTSD mitigates the AWOL given the possibility it was also related to trauma. However, striking and pointing a firearm at another individual is not mitigated. Those behaviors are not a progression or sequela of trauma. Additionally, the applicant continues to deny the charges; there is no need for a mitigation determination if the applicant is asserting the misconduct did not occur. (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 conditions outweighed the basis for applicant’s separation – specifically assault by pointing a firearm in an individual’s face, striking an individual – for the aforementioned reasons. b. Response to Contention(s): The applicant states the requested relief would allow them to receive their education benefits. The Board considered this contention and 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, 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, despite applying liberal consideration of all the evidence before the Board, the applicant’s Adjustment Disorder, Acute Stress Disorder, PTSD, and Antisocial Personality Disorder do not excuse or mitigate the offenses of assault by pointing a firearm in an individual’s face and striking an individual. 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 AR20210008657 1