1. Applicant's Name: a. Application Date: 21 July 2022 b. Date Received: 14 November 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 Bad Conduct. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant was not guilty of assault. The alleged victim was never in fear and testified under oath to the same. A Bad-Conduct Discharge is excessive under the circumstances. The applicant's supervisory chain unanimously testified of wanting to continue serving with the applicant and the applicant was capable of rehabilitation and continued service. The applicant's post-service conduct warrants an upgrade. Using a court-martial to address the allegations was excessive and should have been handled at the unit/command level, considering the applicant's service in Iraq and the mental and emotional challenges the applicant faced since serving in combat. b. Board Type and Decision: In a telephonic personal appearance hearing conducted on 13 March 2023, and by a 5-0 vote, the Board determined that the characterization was improper based on the applicant's length and quality of service, to include combat service, the absence of any other misconduct, and the applicant's post-service accomplishments. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to General Under Honorable Conditions. 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: Court-Martial (Other) / AR 635-200, Chapter 3 / JJD / RE-4 / Bad Conduct b. Date of Discharge: 20 August 2014 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 13, dated 26 June 2012, on 16 February 2012, the applicant was found guilty of the following: Charge I, Violation of Article 128, on 8 May 2011, the applicant committed an assault upon SPC L. M. H., by pointing with a dangerous weapon, to wit: a loaded firearm. Charge II, Violation of Article 92, Specification 1: on 8 May 2011, the applicant failed to obey a lawful general regulation by wrongfully failing to register the privately-owned firearm. (2) Adjudged Sentence: Reduction to E-1; to be confined for 80 days, and to be discharged from the service with a Bad Conduct discharge. (3) Date / Sentence Approved: 26 June 2012 / The sentence was approved and, except for the part of the sentence extending to a bad conduct discharge, would be executed. (4) Appellate Reviews: The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review. The Special Court-Martial Order promulgating The United States Army Court of Criminal Appeals affirming the approved findings of guilty and the sentence is NIF. (5) Date Sentence of BCD Ordered Executed: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 June 2008 / 3 years, 21 weeks b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / 90 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92G10, Food Service Specialist / 5 years, 11 months, 27 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (1 September 2009 - 22 May 2010) f. Awards and Decorations: ARCOM, NDSM, GWOTSM, ICM-CS, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Report of Result of Trial reflects the applicant was tried in a Special Court-Martial Empowered to Adjudge a Bad Conduct Discharge on 16 February 2012. The applicant was charged with Charge I, II, and III. The summary of offenses, pleas, and findings: Charge I: Violation of Article 128, Committing an assault by pointing with a dangerous weapon, to wit: a loaded firearm on 8 May 2011, guilty, inconsistent with the plea; Charge II: Violation of Article 90, willful disobedience of a lawful command on 8 May 2011, dismissed consistent with the plea; and Charge III: Violation of Article 92: Specification 1: failing to obey a lawful general regulation by wrongfully failing to register a privately-owned weapon on 8 May 2011, guilty, consistent with plea, and Specification 2: failing to obey a lawful general regulation by wrongfully possessing a loaded privately-owned weapon in the vehicle on 8 May 2011, not guilty, consistent with plea. After the arraignment, Charge II and its Specification were dismissed, and Charge III was renumbered as Charge II. Sentence: To be reduced to the grade of E-1, to be confined for 80 days, and to be discharged from the service with a Bad Conduct Discharge. Special Court-Martial Order as described in previous paragraph 3c. i. Lost Time / Mode of Return: 65 days (Confined by Military Authorities, 16 February 2012 - 20 April 2012) / The applicant was released from military confinement. j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and DD Form 214. Additional Evidence: Record of Trial with Verbatim Transcript (pages 36-199); Prosecution Exhibits admitted into evidence; Defense Exhibits admitted into evidence; Defense Exhibits not admitted into evidence; and Appellate Exhibits. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): b. 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. c. 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. d. 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. e. 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. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization. (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) Paragraph 3-11 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing SJA. 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 "JJD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 3, Court-Martial (other). g. 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-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 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 requests an upgrade to honorable. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant's Army Military Human Resource Record (AMHRR) indicates the applicant was adjudged guilty by a court-martial and the sentence was approved by the convening authority. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is empowered to change the discharge only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. The applicant contends not being guilty of assault, the alleged victim was never in fear and testified under oath of the same, and the Bad-Conduct Discharge is excessive under the circumstances. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the supervisory chain unanimously testified of wanting to continue serving with the applicant and the applicant was capable of rehabilitation and continued service. Army Regulation 635-200, paragraph 1-17d(2), entitled counseling and rehabilitative requirements, states the separation authority may waive the rehabilitative requirements in circumstances where common sense and sound judgment indicate such a transfer will serve no useful purpose or produce a quality Soldier. The applicant contends the post-service conduct warrants an upgrade. The applicant did not submit any evidence, other than the applicant's statement, to support the contention. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. 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 contends using a court-martial to address the allegations was excessive and should have been handled at the unit/command level, considering the applicant's service in Iraq and the mental and emotional challenges the applicant faced since serving in combat. The available AMHRR is void of any indication the applicant was suffering from a disabling medical or mental condition during the discharge processing. The applicant did not submit any evidence, other than the applicant's statement, to support the contention. The applicant provided documentary evidence of achievements and awards earned while serving, including a combat tour. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. 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): N/A b. The applicant presented the following additional contention(s): 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 / Witness(es) / Observer(s): 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 and found that the applicant has the following potentially-mitigating diagnoses/experiences: Adjustment Disorder; Adjustment Disorder with disturbance of emotions and conduct. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant was diagnosed with Adjustment DO while in military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that there are no mitigating BH conditions. While the applicant has been diagnosed with Adjustment DO, this condition does not mitigate the misconduct as it does not affect one's ability to distinguish right from wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board considered the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant's Adjustment DO outweighed the basis for applicant's separation - committing assault and failure to obey a lawful order, for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends not being guilty of assault, the alleged victim was never in fear and testified under oath of the same, and the Bad-Conduct Discharge is excessive under the circumstances. The Board determined that this contention was valid and voted to upgrade the characterization of service due to applicant's length and quality of service, to including combat service, and post-service accomplishments outweighing the applicant's Failure to obey a lawful order and committing an assault with a dangerous weapon. (2) The applicant contends the supervisory chain unanimously testified of wanting to continue serving with the applicant and the applicant was capable of rehabilitation and continued service. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings along with the totality of the applicant's service record. (3) The applicant contends the post-service conduct warrants an upgrade. The Board determined the characterization is inequitable based on the applicant's post service accomplishments. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to General (Under Honorable Conditions) but was not sufficiently meritorious to warrant an honorable discharge. (4) The applicant contends using a court-martial to address the allegations was excessive and should have been handled at the unit/command level, considering the applicant's service in Iraq and the mental and emotional challenges the applicant faced since serving in combat. The Board considered this contention but determined that the Army has many legitimate avenues available to service members requesting assistance with mental and emotional challenges, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. (5) The applicant provided documentary evidence of achievements and awards earned while serving, including a combat tour. The Board considered this contention and determined that the characterization of service was inequitable based partially on the applicant's quality of service and combat service. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General Under Honorable Conditions 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 outweighed the applicant's Failure to obey a lawful order and committing an assault with a dangerous weapon. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General Under Honorable Conditions. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to General Under Honorable Conditions because the applicant's length and quality of service, to include combat service, and post-service accomplishments outweighed the applicant's failure to obey and assault. Thus, the prior characterization is no longer appropriate but was not sufficiently meritorious to warrant an honorable discharge. (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 / Separation Order: 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 AR20220010824 1