1. Applicant's Name: a. Application Date: 19 July 2022 b. Date Received: 25 August 2022 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is under other than honorable conditions. The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. The Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28, which stipulates a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant seeks relief contending, in effect, the applicant was defending themself; the applicant had no other misconduct; the applicant had honorable service; the characterization of the discharge is excessive; the applicant's post-service conduct and achievements are sufficient to warrant an upgrade; and the applicant was dealing with unresolved emotional issues stemming from service in Iraq. b. Board Type and Decision: In a personal appearance conducted on 1 May 2023, and by a 3-2 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service, prior honorable service, and post service accomplishments. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them. 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: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 27 May 2009 c. Separation Facts: (1) DD Form 458 (Charge Sheet): Charge Sheet, dated 12 March 2009, reflects on or about 1 February 2009, the applicant was charged with committing an assault upon another Soldier by cutting the Soldier on the neck and mouth with a broken bottle and then thereby intentionally inflict grievous bodily harm upon the Soldier, to wit: deep cuts and was drunk and disorderly on or about 1 February 2009, which was a nature to bring discredit upon the armed forces. (2) Legal Consultation Date: 27 March 2009 (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 30 April 2009 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 December 2004 / 5 years b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-5 / 63B10, H8 Wheeled Vehicle Mechanic / 8 years, 8 months, 5 days d. Prior Service / Characterizations: RA, 29 October 2002 - 22 December 2004 / HD USAR, 23 September 2000 - 29 October 2002 / NA e. Overseas Service / Combat Service: Korea, SWA / Iraq (13 February 2003 - 10 December 2003), (1 November 2005 - 24 October 2006) f. Awards and Decorations: ARCOM, AAM, AGCM-2, NDSM, GWOTSM, GWOTEM, ICM-CS-2, ASR, OSR-3, CAB, Driver, and Mechanic Badge-Wheeled Vehicle(s) Clasp g. Performance Ratings: 1 December 2006 - 31 March 2007 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: See Charge Sheet as described in item 3c(1). 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, DD Form 214, documents from separation file, AGCM Orders, Letter of support 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) 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 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. (6) Paragraph 10-8a stipulates a discharge under other than honorable conditions is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. (See chap 3, sec II). (7) Paragraph 10b stipulates Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper. 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 did not properly annotate the enclosed application requesting a possible discharge upgrade. The Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28, which stipulates a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends, in effect, having had no other misconduct and was defending themself. 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 contends, in effect, having had honorable service. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends, in effect, the characterization of the discharge is excessive. The applicant voluntarily requested the discharge in lieu of court-martial. With the request, the applicant acknowledged that if the request for discharge was accepted, the applicant understood that he could receive an under other than honorable conditions discharge. The applicant contends, in effect, the applicant's post-service conduct and achievements are sufficient to warrant an upgrade. The applicant does not specify any post-service achievements in the application. The applicant contends, in effect, the applicant was dealing with unresolved emotional issues stemming from service in Iraq. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): On 30 April 2023, 1 day prior to hearing, applicant provided: letters of support from applicant's spouse, retired MSG, a supervisor at Chevron Phillips, and a CW3, 5 photographs, and applicant's 2-page resume - that were added to the case file and considered by the Board. b. The applicant presented the following additional contention(s): None c. Counsel / Witness(es) / Observer(s): None 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 found that the applicant has the following potentially-mitigating diagnosis: The applicant was diagnosed in-service with an Adjustment Disorder. Although not formally diagnosed with a trauma disorder in-service, he did receive deployment related interventions. (2) Did the condition exist or experience occur during military service? Yes. The applicant was diagnosed in-service with an Adjustment Disorder. Although not formally diagnosed with a trauma disorder in-service, applicant did receive deployment related interventions. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that irrespective of the likelihood the applicant was experiencing trauma symptoms in-service, acts of violence are not mitigated by PTSD. (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 Adjustment Disorder and PTSD outweighed the basis for applicant's separation - assault - for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends the applicant was defending themself. The Board considered this contention and determined that the applicant defending themselves does not excuse or mitigate committing assault with a broken bottle, the basis for separation. However, the Board voted to upgrade the characterization of service based on applicant's length and quality of service, to include combat service, prior honorable service, and post service accomplishments. (2) The applicant contends the applicant had honorable service with no other misconduct. The Board considered the applicant's years of service, including 2 combat tours in Iraq and the numerous awards received by the applicant but determined that these factors did not outweigh the applicant's assault of another Soldier with a broken bottle. (3) The applicant contends the characterization of the discharge is excessive. The Board voted to upgrade the characterization of service based on applicant's length and quality of service, to include combat service, prior honorable service, and post service accomplishments. (4) The applicant contends the applicant's post-service conduct and achievements are sufficient to warrant an upgrade. The Board voted to upgrade the characterization of service based on applicant's length and quality of service, to include combat service, prior honorable service, and post service accomplishments. (5) The applicant contends the applicant was dealing with unresolved emotional issues stemming from service in Iraq. The Board considered this contention and determined the applicant may have been dealing with unresolved emotional issues stemming from service in Iraq, however this does not mitigate or excuse the assault of another Soldier with a broken bottle basis for separation. However, the Board voted to upgrade the characterization of service based on applicant's length and quality of service, to include combat service, prior honorable service, and post service accomplishments. c. The Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service, prior honorable service, and post service accomplishments. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them. However, the applicant may request a personal appearance hearing to address further 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 to change the applicant's characterization of service to General Under Honorable Conditions based on the applicant's length and quality of service, to include combat service, prior honorable service, and post service accomplishments outweighing the basis of separation. Thus, the prior characterization is no longer appropriate. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code 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: Yes b. Change Characterization to: General, Under Honorable Conditions 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 AR20220007398 1