1. Applicant's Name: a. Application Date: 10 February 2021 b. Date Received: 8 March 2021 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general, under honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, he completed the terms of his contract and was wrongfully discharged after being threatened by his old first sergeant, resulting in a felony conviction. In a records review conducted on 15 October 2021, 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, Paragraph 14-12c / JKQ / RE-3 / General, (Under Honorable Conditions) b. Date of Discharge: 29 January 2020 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The applicant was informed of the following reasons: On 1 June 2017, the applicant assaulted Mrs. B.B.; Between on or about 1 November 2017 and 15 December 2017, the applicant committed adultery; between 9 December 2017 and 15 December 2017, the applicant assaulted Ms. G.W; and on or about 15 January 2018, the applicant attempted to commit insurance fraud by setting his car on fire and reporting it stolen. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 17 December 2019 (5) Administrative Separation Board: The applicant conditionally waived an administrative separation board. (6) Separation Decision Date / Characterization: 27 January 2020 / General, (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 September 2016 / 3 years, 18 weeks b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 105 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B, Infantryman / 3 years, 4 months, 4 days d. Prior Service / Characterizations: None / None e. Overseas Service / Combat Service: None / None f. Awards and Decorations: NDSM, GWOTSM, ASR, Air Assault Badge g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: A Law Enforcement Final Report, dated 25 August 2017, reflects the applicant was involved in a verbal dispute with Mrs. B.B. which escalated into a physical assault. The applicant was processed and released to his unit. FG Article 15, dated 4 April 2018, reflects the applicant unlawfully strike Mrs. B.B. on the face with his hand on or about 1 June 2017 and unlawfully strike Mrs. B.B. on the leg with keys and a remote on or about 1 June 2017. The punishment consisted of reduction to private/E-2; forfeiture of $918.00 pay per month for 2 months, suspended, to be automatically remitted if not vacated on or before 18 June 2018; extra duty and restriction for 45 days, suspended, to be automatically remitted if not vacated on or before 18 June 2018; and a written reprimand. On 19 August 2019, the applicant entered a Guilty Plea pursuant to N.C. v. Alford to the offenses of burning personal property to defraud insurer and falsely reporting an incident. A Law Enforcement Report, dated 29 August 2019, reflects, in part, an investigation revealed that on 25 April 2018, the applicant and his significant other were involved in a verbal dispute over the applicant's being married with children, which the significant other had no knowledge of. The dispute led to a physical altercation when the applicant strangled his significant other. The applicant was processed and released to his unit. A Report of Mental Status Evaluation, dated 13 September 2019, reflects the applicant had no duty limitations due to behavioral health reasons. The applicant's behavioral health condition was not likely a mitigating factor in the alleged behavior leading to an administrative separation. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), 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) 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, states 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. 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant's AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable. The applicant contends he completed the terms of his contract and was wrongfully discharged after being threatened by his old first sergeant, resulting in a felony conviction. The applicant is claiming Whistleblower status in reference to his case. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed DoD and VA medical records and found the applicant held an in-service diagnosis of Adjustment Disorder with noted concern for secondary gain in seeking PTSD diagnosis. Additionally, the applicant was involved with the Family Advocacy Program as the offender of domestic violence. Post-service, the applicant is service-connected for PTSD, which, in the opinion of the Board's Medical Advisor could potentially mitigate the misconduct which led to separation from the Army. (2) Did the condition exist or experience occur during military service? Yes. The applicant held an in-service diagnosis of Adjustment Disorder and was the offender of intimate partner violence (IPV). A review of the VA medical records indicates that the BH condition, which could mitigate the basis for discharge, occurred during military service and has service- connected the applicant. While the applicant is post-service connected for PTSD, in-service documentation outlines multiple evaluations for PTSD with negative findings and concern for secondary gain; claims arose when he was charged and pending separation. (3) Does the condition or experience actually excuse or mitigate the discharge? No. Irrespective of the validity of the PTSD diagnosis, PTSD does not mitigate assault, adultery, or insurance fraud. Specifically, the applicant's assaults exhibit a pattern of abusive behavior rather than an uncharacteristic event/s, did not occur within a trauma recreation, and could be discussed coherently without amnesia and with attempts to apologize to avoid reporting. The applicant's adultery and insurance fraud involve a series of premeditative and conscious choices leading to the behavior with likely attempts to avoid detection; these actions are not characteristic of trauma reactions. Accordingly, there is no medical mitigation. (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the applicant's assault, adultery, and insurance fraud offenses outweighed the applicant's Adjustment Disorder and PTSD diagnoses for the reasons listed in (3) above. b. Response to Contentions: (1) The applicant contends he completed the terms of his contract and was wrongfully discharged after being threatened by his old first sergeant, resulting in a felony conviction. The record confirms the applicant's discharge was appropriate because the quality of the applicant's service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the applicant's assault, adultery, and insurance fraud offenses, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (2) The applicant's claim for Whistleblower status does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact the office of the Army Inspector's General regarding this matter. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service because, despite applying liberal consideration, the applicant's Adjustment Disorder and PTSD diagnoses did not mitigate the offenses of assault, adultery, or insurance fraud. The applicant did not supply sufficient independent corroborating evidence to support contentions, and the discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, and the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210009690 1