1. Applicant's Name: a. Application Date: 7 September 2021 b. Date Received: 12 October 2021 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests, through counsel, an upgrade to honorable along with a narrative reason and reentry (RE) code change. The applicant's counsel seeks relief contending, in effect, the applicant was having marital problems which eventually led to the applicant receiving a summary court martial. While the applicant's actions were found to be in violation of UCMJ regulations, the alleged offense should not prevent the applicant from obtaining an honorable discharge. The applicant confessed his mistakes and given the opportunity, would have continued to serve honorably. Prior to the misconduct, the applicant served honorably for over 5 years and received multiple awards. The discharge does not reflect the applicant's overall service and sacrifice made for the country. The applicant is currently employed and attending school. The discharge is hindering the applicant's employment opportunities. In a telephonic personal appearance hearing conducted on 16 May 2022, and by a 5 - 0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 10 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 / Under Other Than Honorable Conditions b. Date of Discharge: 1 September 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: On or about 2 July 2017, the applicant willfully and wrongfully damaged a cell phone by throwing it on the ground, the amount of said damage being in the sum of less than $500, the property of Ms. B. On or about 3 August 2017, the applicant willfully and wrongfully destroyed a bedroom door and door frame by punching and striking the door multiple times, the amount of said damage being in the sum of less than $500 the property of Island Palms Community. On or about 2 July 2017, the applicant unlawfully grabbed Ms. B, on the neck with his hand. On or about 30 July 2017, the applicant unlawfully grabbed Ms. B, on the neck and arm. On or about 3 August 2017, the applicant committed an assault upon Ms. B by strangling her with a means likely to produce death or grievous bodily harm, to wit: putting hands around her neck and applying pressure. On or about 3 August 2017, the applicant wrongfully communicated to Ms. B a threat to injure Ms. B by saying "you threatening my career now and trying to leave me, you about to die this day you remember our vows, tit death do us part" or words to that effect, such conduct-being to the prejudice of good order and* discipline in the armed forces and of a nature to bring discredit upon the armed forces. (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 20 July 2018 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 February 2016 / 3 years b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 98 c. Highest Grade Achieved / MOS / Total Service: E-5 / 12N10, Horizontal Construction / 5 years, 3 months, 26 days d. Prior Service / Characterizations: RA, 6 May 2013 - 17 February 2016 / HD e. Overseas Service / Combat Service: Korea, 23 May 2016 - 8 February 2017 / None f. Awards and Decorations: AGCM, NDSM, GWOTSM, KDSM, ASR, OSR, COA, Driver and Mechanic Badge-Driver Wheeled Vehicle(s) Clasp g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: A Record of Trial by Summary Court- Martial, held on 31 May 2018, reflects the applicant did not object to trial by summary court- martial and was not represented by counsel. The charges and specifications are not available for review. The punishment consisted of reduction to private/E-1 and confinement for 30 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Counsel's Brief with 13 exhibits 6. POST SERVICE ACCOMPLISHMENTS: The applicant's counsel states the applicant is employed and attending school. 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) Paragraph 3-7c states 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. (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. (6) 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. (7) 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) Chapter 15 provides for the basic separation of enlisted personnel for the convenience of the government. It 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 memorandums. Secretarial separation authority is normally exercised on a case-by-case basis. e. 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. f. 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 The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of "3." 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's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant's counsel requests the applicant's narrative reason for the discharge be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635- 200 with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ." Army Regulation 635-8, Separation Documents, governs the preparation of the DD Form 214 and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends the separation code (SPD) should be changed. Separation codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations the SPD code specified by Army Regulations for a discharge under Chapter 14, paragraph 14-12c, is "JKQ." Army Regulation 635-5, Separation Documents, governs the preparation of the DD Form 214 and dictates the entry of the separation code entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of "3." The applicant's counsel contends the applicant was having marital problems which eventually led to the applicant receiving a summary court martial. The applicant had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct, which led to the separation action under review. The applicant's counsel contends although the applicant's actions were found to be in violation of UCMJ regulations, the alleged offense should not prevent the applicant from obtaining an honorable discharge. The applicant's counsel contends prior to the misconduct, the applicant served honorably for over 5 years and received multiple awards. The applicant's service accomplishments and the quality of the service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant's counsel contends the discharge does not reflect the applicant's overall service and sacrifice the applicant made for the country. The applicant's counsel states the applicant is currently employed and attending school. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The applicant's counsel contends the discharge is hindering the applicant's employment opportunities. The Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional documents: N/A b. The applicant presented the following additional contentions: Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence. c. Counsel / Witnesses / Observers: 10. 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. The applicant held an in-service Adjustment Disorder with ongoing assessment for Personality Disorder. Although IPV occurred, the applicant was the offender. The applicant asserts cognitive impairment at the time of his misconduct, e.g. blacked out. (2) Did the condition exist or experience occur during military service? Yes. The applicant held an in-service Adjustment Disorder with ongoing assessment for Personality Disorder. Although IPV occurred, the applicant was the offender. The applicant asserts cognitive impairment at the time of his misconduct, e.g. blacked out. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined the applicant's Adjustment Disorder does not mitigate IPV; Adjustment Disorder does not impair an individual's ability to make conscious choices. In terms of the applicant's assertion of blacking out, documentation outlines clear statements made by the applicant immediately after the event, the next morning, and for seven months prior to the Court Martial. Additionally, the applicant had a neuropsychological exam that did not find a cognitive impairment or disorder. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that any of the applicant's medical conditions of Adjustment Disorder with ongoing assessment for Personality Disorder completely outweighed the basis for applicant's separation for willfully and wrongfully damaged a cell phone; willfully and wrongfully destroyed a bedroom door and door frame; unlawfully grabbing Ms. B, on the neck with his hand; unlawfully grabbed Ms. B, on the neck and arm; committing an assault upon Ms. B by strangling her with a means likely to produce death or grievous bodily harm; and wrongfully communicating a threat to injure Ms. B. b. Response to Contentions: (1) The applicant's counsel contends the applicant was having marital problems which eventually led to the applicant receiving a summary court martial. The Board considered this contention, but determined that the Army has many legitimate avenues available to service members requesting assistance with marital issues, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant misconduct is not an acceptable response to dealing with marital problems, thus the applicant was properly and equitably discharged. (2) The applicant's counsel contends although the applicant's actions were found to be in violation of UCMJ regulations, the alleged offense should not prevent the applicant from obtaining an honorable discharge. The Board determined 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 serious misconduct of assault or communicating a threat listed in 3.c(2) above, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (3) The applicant's counsel contends prior to the misconduct, the applicant served honorably for over 5 years and received multiple awards. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings, the applicant's prior honorable service was recognized with an honorable characterization for the term of enlistment. (4) The applicant's counsel contends the discharge does not reflect the applicant's overall service and sacrifice the applicant made for the country. The Board considered the applicant's length and quality of service during the proceedings to include the applicant's post service attempts for rehabilitation. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contentions 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 with ongoing assessment for Personality Disorder did not excuse or mitigate the offenses of willfully and wrongfully damaged a cell phone; willfully and wrongfully destroyed a bedroom door and door frame; unlawfully grabbing Ms. B, on the neck with his hand; unlawfully grabbed Ms. B, on the neck and arm; committing an assault upon Ms. B by strangling her with a means likely to produce death or grievous bodily harm; and wrongfully communicating a threat to injure Ms. B. 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. 11. 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 IPV - Intimate Partner Violence 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 AR20220001978 1