1. Applicant’s Name: a. Application Date: 31 July 2020 b. Date Received: 11 August 2020 c. Counsel: Yes 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, through counsel, requests an upgrade to honorable, type of separation change to “Immediate Reenlistment,” and a reentry eligibility (RE) code change to RE-1. The applicant through counsel, seeks relief contending, in effect, the applicant’s ex-fiancée, A__ S__ took it upon self to locate the applicant’s military service weapon which was stored in the applicant’s master bedroom. S__ is familiar with weapons, has had weapons training, and is a licensed firearms owner of a Beretta PX4 Storm pistol. S__ removed the applicant’s service weapon from its storage location and took it into the living room where S__ discharged a single round into the ceiling. The applicant had left the residence prior to this because S__ was intoxicated and being irate, argumentative, and screaming at the applicant for several hours over wanting to reconcile their relationship. S__ never had any desire to report the incident. However, after hearing S__'s complaints about the manner in which the applicant ended their relationship, one of S__'s friends reported an “incident” to the Cumberland County, North Carolina Sheriff’s office. S__ did not want to pursue the matter any further. S__ clearly communicated this fact to both the friend and every law enforcement agency with whom S__ spoke about the incident. Cumberland County declined to investigate or prosecute, but as required, notified the applicant's chain of command. Throughout the investigation that followed, S__ made it clear that there was no wish to pursue the matter, that the applicant was not at fault, and that S__ had been angry, hurt, and emotional (see exhibit 4, Criminal Investigation Division (CID) Form 570-E (Victim’s Declination to Participate in Criminal Investigation) and Memorandum for Record). Despite S__’s denial that the incident happened as the government tried to get S__ to say, and S__’s clear plea that the matter be put to rest, U.S. Army CID pursued the matter with a formal investigation, titling, and administrative separation. The applicant through counsel, seeks relief contending, the pendulum has swung too far, every accusation was taken as truth regardless. The grounds for separation were “assaulted your intimate partner” and “negligently failed to secure your duty weapon,” neither of which were factually correct. The administrative separation was based solely on an accusation, later recanted, by an emotional and hurt young ex-fiancé. While domestic violence can never be condoned in any form, the mere fact that an accusation was made should never carry the day in terms of bluntly ending a promising military career with a less than honorable conditions discharge. But in the rush to condemn assault and defer to the accusation, if not the victim, the mere accusation cast such a shadow over the applicant that the applicant was unceremoniously separated from the military, over even the protestations of S__. The other ground for separation was an accusation that the applicant failed to secure the duty weapon that evening. This ground is an overreach as the applicant had nothing to do with this part of the incident. S__, an adult with weapons familiarity, who owns a personal weapon, had full access to the home, and was in the home alone after the applicant left to sleep in the car. S__ chose proactively to locate the weapon stored in the master bedroom, take it into the living room and mishandle it. The applicant had already left the home, forced out due to S__’s behavior. Allowing the applicant to carry a general discharge is akin to asking a person to be judged for the rest of their life based solely on one thing that their spouse or significant other has ever said or done to them over the course of a long-term relationship. The applicant handled a difficult situation in the best way possible. The applicant had an otherwise unblemished military record and was a well-regarded agent and individual. It is undisputed that the applicant was a stand-out Soldier and special agent during military service. Other than this one incident, the applicant has had no other disciplinary issues, either civilian or military. Counsel further details the contentions in an allied legal brief provided with the application. b. Board Type and Decision: In a records review conducted on 09 August 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: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 17 April 2020 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: NA (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 September 2017 / 5 years b. Age at Enlistment / Education / GT Score: 19 / Master’s Degree / 124 c. Highest Grade Achieved / MOS / Total Service: E-4 / 31D10, CID / 2 years, 6 months, 21 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM, NDSM, GWTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: A DA Form 4833 (Commander Report of Disciplinary or Administrative Action), dated 23 April 2020, reflects the applicant was apprehended for: Domestic Violence (UCMJ - Article 128b), Assault by Strangulation or Suffocation (UCMJ - Article 128), Assault (UCMJ - Article 128), Failure to Obey General Order (UCMJ - Article 92), and Dereliction of Duties - Willful/Neglect (UCMJ - Article 92). The imposed punishment was administrative, in that the applicant received a local written letter, an adverse record entry flag on 20 December 2019, and a military occupational specialty reclassification on 9 April 2020. The applicant was eliminated from the CID program and from the U.S. Army with a general (under honorable conditions) discharge under chapter 14c, commission of a serious offense. Law Enforcement Report - 1st Corrected Final, dated 8 January 2020, reflects an investigation established the applicant committed the offenses of Domestic Violence, Assault by Strangulation or Suffocation, Assault, Failure to Obey a General Order, and Dereliction of Duties. A Sergeant First Class (SFC) reported the applicant physically assaulted (word masked). (Name masked) stated while in their residence became (word masked) and retrieved the applicant’s assigned duty weapon from the nightstand and accidentally discharged a duty round into the ceiling of their bedroom. (Name masked) stated when told to the applicant, the applicant returned home and was worried for (name masked) safety. Further, (name masked) stated to have replaced the missing round with a non-issue round found in the closet. (Name masked) denied ever being physically assaulted by the applicant. (Name masked) stated the only time sustained injuries from the applicant was when they engaged in consensual sexual acts. SFC (name masked) stated (words masked) related to (name masked) disclosed that the applicant assaulted (name masked) on multiple occasions. (Name masked) stated (name masked) disclosed that the applicant had assaulted (name masked) after (name masked) told the applicant (name masked) fired a round from the applicant’s duty weapon into the ceiling of their bedroom. (Name masked) stated (name masked) showed the applicant (words masked) which (name masked) stated were the result of being assaulted by the applicant; when the applicant grabbed (name masked) by the arms during the argument. (Name masked) stated (name masked) exposed images of the (word masked) with a cellular telephone. Further, (name masked) stated (name masked) disclosed that on two separate occasions; the applicant (words masked). An examination of (name masked) cell phone revealed two digital images of (name masked) with what appeared to be multiple (word masked). The applicant was advised of the applicant’s rights, which the applicant invoked and requested legal counsel. Interviews of multiple individuals in (name masked) bible study group, revealed (name masked) had disclosed the applicant had problems with anger and could get violent, but did not provide specifics. (Name masked) and (name masked) of (name masked) (words masked) described an emotionally abusive relationship between (name masked) and the applicant but had had no knowledge of violence within the relationship. On 8 December 2019, Trial Counsel, Office of Staff Judge Advocate, Fort Bragg, NC, opined probable cause existed to believe the applicant committed the offenses of Domestic Violence, Assault by Strangulation, Assault, Failure to Obey a Lawful Order, and Dereliction of Duty. There was sufficient evidence to provide to the command for consideration of action. Orders 094-0278, dated 3 April 2020, reflect the applicant was to be reassigned to the U.S. Army Transition Point and discharged on 17 April 2020 Regular Army. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects the applicant had not completed the first full term of service. The applicant was discharged under the authority of AR 635-200, paragraph 14-12c, with a narrative reason of Misconduct (Serious Offense). The DD Form 214 was authenticated with the applicant’s electronic signature. 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; Legal Brief with all listed exhibits 1 through 7 (includes DD Form 214, Enlisted Record Brief, and 15 third-party letters). 6. POST SERVICE ACCOMPLISHMENTS: The applicant was admitted to Syracuse University College of Law in New York for the fall 2020 semester. 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. (7) 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: RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant through counsel requests an upgrade to honorable, type of separation change to “Immediate Reenlistment,” and a RE code change to RE-1. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant’s AMHRR is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. The applicant’s AMHRR does contain a properly constituted DD Form 214, which was authenticated by the applicant’s electronic signature. The applicant’s DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason of Misconduct (Serious Offense), with a characterization of service of general (under honorable conditions). The applicant through counsel requests the type of separation be changed from discharge to “Immediate Reenlistment.” AR 635-8 (Separation Processing and Documents) states for enlisted personnel types of separation include release from active duty (REFRAD), discharge, retirement, REFRAD and order to active duty in another status, release from active duty for training (ADT), release from custody and control of the Army, and release from ADT and discharge from the Reserve of the Army and returned to the Army National Guard. A discharge is a complete severance from all military status gained by enlistment or appointment concerned. Immediate reenlistment is not listed as an appropriate term used for block 23 (Type of Separation) of the DD Form 214. The applicant through counsel requests a RE code change to RE-1. The applicant desires to rejoin the military Service. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on AR 601-201, the applicant was appropriately assigned an RE code of “3.” An RE Code of “3” indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former Service member as to the Army’s needs at the time and are required to process waivers of RE codes if appropriate. The applicant’s counsel contends, in effect, the applicant’s ex-fiancée, solely mishandled the applicant’s military service weapon which was stored in the applicant’s master bedroom in the absence of the applicant. Counsel provided exhibit 5, Memorandum for Record, Declination to Participate, dated 31 December 2019, from the applicant’s ex-fiancée the alleged victim in the incident on or about 31 August 2019, involving, the applicant. It states at the time of the incident, the applicant and the applicant’s ex-fiancée had been engaged to be married but had broken off their engagement and the applicant’s ex-fiancée had moved out of the home. That night the applicant’s ex-fiancée was intoxicated and went back to the applicant’s house to talk. The applicant’s ex-fiancée became argumentative and aggressive, the applicant remained calm and was never aggressive in return. The applicant eventually left the house while the applicant’s ex- fiancée was still there, to avoid further confrontation. None of the events of 31 August 2019 were the applicant's fault and the applicant’s ex-fiancée did not wish the applicant to suffer any negative consequences as a result of the applicant’s ex-fiancé’s actions. The applicant’s counsel contends, in effect, the event which led to the discharge from the Army was the only incident the applicant has had. Army Regulation 635-200, paragraph 3-5, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant’s counsel contends, in effect, the applicant had an otherwise unblemished military record and was a well-regarded agent and individual. It is undisputed that the applicant was a stand-out Soldier and special agent during military service. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The Army Review Board Agency provided a DA Form 4833 (Commander Report of Disciplinary or Administrative Action), dated 23 April 2020 and Law Enforcement Report, dated 8 January 2020, from CID to the applicant at the address in the application on 13 June 2023 requesting comments but received no response from the applicant. On 27 June 2023, the same two documents were emailed to the applicant’s counsel, which was acknowledged by counsel. As of 7 July 2023, no response was received from counsel. Twelve of the fifteen third party statements provided with the application speak highly of the applicant. They all recognize the applicant’s good conduct while serving in the Army. Three of the statements from family members focused on the character of the applicant’s ex-fiancé. 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? No. The Board’s Medical Advisor reviewed DoD and VA medical records and found no mitigating diagnoses. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused or mitigated a discharge. (2) Did the condition exist, or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): (1) The applicant, through counsel, requests an upgrade to honorable, type of separation change to “Immediate Reenlistment,” and a reentry eligibility (RE) code change to RE-1. The Board determined that a General (Under Honorable Conditions) characterization is proper and equitable because the misconduct (domestic violence, assault by strangulation or suffocation, assault, failure to obey a general order, and dereliction of duties) brought discredit on the Army, violated good order and discipline, and did not reflect honorable service. The board decided to maintain the reentry eligibility (RE) 3 code. In accordance with AR 635-200, paragraph 14-12c, the narrative reason of Misconduct (Serious Offense) is proper and equitable. The DD Form 214 in the applicant file was authenticated with the applicant’s electronic signature. (2) The applicant’s counsel contends, in effect, the applicant’s ex-fiancée solely mishandled the applicant’s military service weapon which was stored in the applicant’s master bedroom in the absence of the applicant. The Board considered this contention and the applicant’s assertion, but unanimously determined that the assertion alone did not outweigh the totality and severity of the misconduct/offenses. (3) The applicant’s counsel contends, in effect, the event which led to the discharge from the Army was the only incident the applicant has had. The Board considered this contention and determined that additional misconduct is also part of the evidentiary conduct. (4) The applicant’s counsel contends, in effect, the applicant had an otherwise unblemished military record and was a well-regarded agent and individual. The Board considered this contention and determined it untrue. There is additional misconduct documented in the evidentiary record/military file. c. The Board determined that the discharge is, at this time, proper and equitable in light of the current evidentiary record. However, the applicant may request a personal appearance hearing to address contentions or present additional evidence. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support contentions. d. Rationale for Decision: (1) The Board carefully considered the: applicant's request, supporting documents, evidentiary record, medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board unanimously voted (vote of 5-0) that the applicant's discharge was proper and equitable based on the misconduct of assault. The Board did consider the applicant’s length of service, quality of service, and post-service accomplishments, all of which did not outweigh the severity/totality of the misconduct. The law enforcement report, along with personal statements, disclosed that the applicant assaulted the ex-girlfriend on multiple occasions. There are no other medical mitigating factors to consider. (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 AR20210009304 1