1. Applicant's Name: a. Application Date: 4 January 2019 b. Date Received: 10 January 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is other than honorable conditions. The applicant requests an upgrade to general (under honorable conditions). The applicant seeks relief contending, in effect, he had not been convicted of any crime during or before his discharge. In a records review conducted on 9 July 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 / Chapter 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 9 September 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 12 June 2014 (2) Basis for Separation: The applicant was informed of the following reasons: During September 2013, he unlawfully, intentionally, knowingly or recklessly did sexually penetrate Miss S. L., who was less than 13 years of age, to wit: digital penetration, in violation of TCA 39-13-522 and during September 2013, he unlawfully, intentionally, knowingly or recklessly did have sexual contact for the purpose of sexual arousal and gratification with Miss S. L., who was under 13 years of age, to wit: by touching and/or rubbing her breasts, in violation of TCA 39-13-504. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 18 June 2014 (5) Administrative Separation Board: On 18 June 2014, the applicant conditionally waived consideration of his case before an administrative separation board, contingent upon him receiving a characterization of service no less favorable than general (under honorable conditions) discharge. On 14 July 2014, the separation authority disapproved the applicant's conditional waiver and directed that an administrative separation board be convened. On 8 August 2014, the applicant unconditionally waived consideration of his case before an administrative separation board. (6) Separation Decision Date / Characterization: 19 August 2014 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 October 2012 / NIF b. Age at Enlistment / Education / GT Score: 29 / GED / 100 c. Highest Grade Achieved / MOS / Total Service: E-4 / 15R10, Attack Helicopter Repairer / 6 years, 5 months, 22 days d. Prior Service / Characterizations: RA, 18 March 2008 - 17 October 2012 / HD e. Overseas Service / Combat Service: Germany, SWA / Afghanistan (20 June 2012 - 4 March 2012); Iraq (4 September 2009 - 17 July 2010) f. Awards and Decorations: ACM-CS, ARCOM-2, AAM, AGCM-2, NDSM, GWOTSM, ICM-CS, NCOPDR, ASR, OSR-2, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CID Report of Investigation - Initial Final, dated 16 September 2013, reflects the CID was notified by the Dickson Police Department (DPD) that [redacted] reported he found [redacted and his house guest, the applicant (age 30) in a bedroom. The DPD detective conducted an interview of [redacted] wherein she disclosed that she and the applicant were involved in consensual sexual acts that day. The Dickson County Magistrate issued an arrest warrant for the applicant who was arrested by DPD and transported to jail on 11 July 2013 and was charged for statutory rape. True Bill, Montgomery County Tennessee, Circuit Court, dated March 2014, reflects a Grand Jury was impaneled for two Criminal Counts wherein the applicant was the named subject: Count 1: That during September 2013 and in the State and County aforesaid, the applicant unlawfully, intentionally, knowingly or recklessly did sexually penetrate S.L. (dob (5/18/2001), who was less than 13 years of age, to wit: digital penetration, in violation of TCA 39-13-522 and against the peace and dignity of the State of Tennessee. Count 2: That during September 2013 and in the State and County aforesaid, the applicant unlawfully, intentionally, knowingly or recklessly did have sexual contact for the purpose of sexual arousal and gratification with S.L. (dob (5/18/2001), who, was under 13 years of age, to wit: by touching and/or rubbing her breasts, in violation of TCA 3 9-13-5 04 and against the peace and dignity of the State of Tennessee. State of Tennessee Sealed Indictment, dated 4 March 2014, reflects the applicant was indicted for: Child, Rape, TCA 39-13-522; and, Aggravated Sexual Battery, TCA 39-13-504. CID Report of Investigation - Final, dated 28 April 2014, the CID was notified by the Special Operations Unit Clarksville Police Department (CPD) that the applicant (age 30 at the time of the incident) sexually assaulted [redacted] at the time of the incident.) An investigation by CPD established probable cause to believe the applicant raped and inappropriately touched [redacted] on two occasions. On 11 March 2014, the applicant was arrested, incarcerated at Montgomery County Jail, and held under a $55, 000 bond. The applicant subsequently posted bond and is currently awaiting a settlement hearing scheduled for 29 May 2014. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 5 June 2014, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with: Adjustment Disorder with depressed mood, resolved. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149. 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), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Service member discharged from active military service within 15 years of the Service member'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 (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 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. 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. 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. DISCUSSION 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 general (under honorable conditions). The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends he was not convicted of any crime before his discharge date. The record does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant was not separated under the provisions of Army Regulation 635-200, chapter 14, section II, conviction by civil court, but rather under section III, acts or patterns of misconduct, specifically, paragraph 14-12c, commission of a serious offense. Army Regulation 635-200 does not require conviction by civilian authorities prior to separation under paragraph 14-12c. 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 ADRB's Medical Advisor, a voting member of the Board, reviewed the applicant's DOD medical records and found that the applicant held in-service diagnoses of Adjustment Disorder and Depressive Disorder NOS. (2) Did the condition exist or experience occur during military service? (YES) The applicant held in-service diagnoses of Adjustment Disorder and Depressive Disorder NOS. (3) Does the condition or experience actually excuse or mitigate the discharge? (NO) While the ADRB applied liberal consideration, engaging in sexual misconduct with an individual younger than 13 is not related to a behavioral health condition. Specifically, the act is conscious, premeditated, and does not meaningfully recreate a trauma. The applicant's diagnoses of Adjustment Disorder and Depressive Disorder NOS did not prevent him from understanding right from wrong and are in no way associated with sexual misconduct. (4) Does the condition or experience outweigh the discharge? (NO) While liberal consideration was applied, engaging in sexual misconduct with an individual younger than 13 is not related to a behavioral health condition. Specifically, the act was conscious, premeditated, and thought-out. An individual suffering from Adjustment Disorder and Depressive Disorder NOS has not lost the ability to understand right from wrong, and these disorders are not associated with sexual misconduct. The Board found that the applicant's serious sexual misconduct that resulted in the Under Other Than Honorable Conditions discharge is not outweighed by the diagnoses behavioral health conditions. b. The applicant contends he was not convicted of any crime before his discharge date. This contention was noted by the Board, but the ADRB noted documents within the applicant's AMHRR that indicated charges of sexual contact with a child under the age of 13. The Board determined that this misconduct cannot be mitigated, nor is the misconduct outweighed, by his BH diagnoses. c. The ADRB determined that the applicant's characterization of service was proper and equitable and voted not to change it because the reason for discharge is supported by the documentation available and there were no medical conditions which mitigated or outweighed the misconduct which led to the applicant's separation from the Army. d. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service because, despite applying liberal consideration, there were no BH diagnoses which mitigated the misconduct (sexual crimes against 13-year-old) 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 because, despite applying liberal consideration, there were no BH diagnoses which mitigated the misconduct, the BH diagnoses did not outweigh the misconduct, and the reason the applicant was discharged was both proper and equitable. (3) Because the characterization and reason were not changed, the SPD/RE codes will not change, as the current codes are 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 to: No Change d. Change Authority to: No Change e. Change SPD / RE Code 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 NA - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Reentry 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 AR20190002872 2