1. Applicant's Name: a. Application Date: 21 February 2019 b. Date Received: 22 April 2019 c. Counsel: None 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 an upgrade to general (under honorable conditions) and a narrative reason change. The applicant seeks relief contending, in effect, his discharge was improper and inequitable because it was determined by a single incident rather than by his entire military service. The applicant contends after his deployments he became angry; began to drink; and grew distant from family and friends. While serving as a Drill Sergeant, he made a poor decision to engage in a consensual sexual relationship with a trainee. He doesn't believe he would have made that decision if he had gotten help. An upgrade would not only allow him to apply for disability compensation, but would also allow him to become more gainfully employed. In a records review conducted on 6 August 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. 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: 20 January 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 25 August 2016 (2) Basis for Separation: The applicant was informed of the following reasons: On divers occasions between on or about 10 April 2016 and on or about 16 April 2016, the applicant engaged in a sexual relationship with an Initial Entry Training Soldier assigned to his battery. Additionally, the applicant passed letters between himself and the same IET Soldier. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 12 October 2016 (5) Administrative Separation Board: On 5 December 2016, an Administrative Separation Board found that the applicant committed a serious offense and recommended he be involuntarily separated under AR 635-200, Chapter 14-12c with an Under Other Than Honorable characterization of service. (6) Separation Decision Date / Characterization: NIF / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 April 2012 / 6 years b. Age at Enlistment / Education / GT Score: HS Graduate / 115 c. Highest Grade Achieved / MOS / Total Service: E-6 / 13F, Fire Support Specialist / 10 years, 2 months, 14 days d. Prior Service / Characterizations: RA, 7 November 2006 - 19 April 2012 / HD e. Overseas Service / Combat Service: SWA / Iraq (1 July 2007 - 17 November 2007), Iraq (28 November 2008 - 6 November 2009), Afghanistan (14 July 2011 - 10 June 2012) f. Awards and Decorations: ACM-CS (2), ARCOM-4, AAM, MUC-2, AGCM-3, NDSM, GWOTSM, NCOPDR-2, ASR, OSR-4, NATO Medal, CAB, COA-4, Drill Sergeant ID Badge, g. Performance Ratings: 1 November 2010 - 10 June 2011 / Fully Capable 11 June 2011 - 10 June 2012 / Among The Best 9 June 2012 - 24 June 2013 / Among The Best 25 May 2013 - 24 May 2014 / Fully Capable 25 May 2014 - 14 April 2015 / Fully Capable 15 April 2015 - 14 December 2015 / Among The Best h. Disciplinary Action(s) / Evidentiary Record: Memorandum, subject: An AR 15-6 Investigation Findings and Recommendations for [Applicant], dated 4 May 2016, reflects sufficient evidence found the applicant met alone with PVT R on several occasions; the applicant told other trainees not to tell that he met privately with PVT R; and that the applicant had an inappropriate relationship with PVT R. FG Article 15, dated 20 June 2016, reflects the applicant, on divers occasions, between on or about 10 April and on or about 20 April 2016, wrongfully exchanged letters with PVT R, an IET Soldier and on or about 10 April 2016 and on or about 16 April wrongfully engaged on sexual intercourse with PVT R, an IET Soldier. The punishment consisted of reduction to sergeant E-5; forfeiture of $500.00 pay per month for 2 months; and extra duty for 45 days, suspended, to be automatically remitted if not vacated on or before 20 December 2016. A Report of Mental Status Evaluation, dated 3 August 2017, reflect the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Personal Statement, Letters of Support, Separation Package, Documents from Military Personnel File (338 pages total) 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 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. 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). 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's AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to general, under honorable conditions. The record confirms the applicant's discharge was appropriate because the quality of his 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 misconduct (serious offense), the applicant diminished the quality of his service below that meriting an honorable discharge at the time of separation. The applicant requests his narrative reason be changed. However, the applicant was separated under the provisions of Paragraph 14-2c with a general, under 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 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends his discharge was improper and inequitable because it was determined by a single incident rather than by his entire military service. The discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. The applicant also contends after his deployments he became angry; began to drink; and grew distant from family and friends. He states he made a poor decision to engage in a consensual sexual relationship with a trainee. 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 further contends an upgrade would not only allow him to apply for disability compensation, but would also allow him to become more gainfully employed. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. Further, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. 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 applicant was diagnosed with PTSD by the VA. (2) Did the condition exist or experience occur during military service? Yes. The VA awarded the applicant a 70% service connection for his PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? No. After review of all the available evidence, it is the opinion of the Agency BH Advisor that the applicant's BH condition, PTSD, did not contribute to the misconduct that led to his separation. Disobeying a General Order to have an inappropriate relationship with a trainee is not associated with a diagnosis of PTSD. The applicant's sexual relationship with a trainee was not a spontaneous or impulsive act, it reflected motivation and rationalization and it did not relate to his traumatic stressor in a way suggesting re-enactment. Accordingly, while liberal consideration was applied, the applicant's misconduct is not mitigated (4) Does the condition or experience outweigh the discharge? No. The offenses of disobeying a General Order to have an inappropriate relationship with a trainee, even in the presence of PTSD, does not outweigh the discharge characterization. b. Response to Contentions: (1) The applicant contends his discharge was improper and inequitable because it was determined by a single incident rather than by his entire military service. The discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. (2) The applicant contends after his deployments he became angry, began to drink, and grew distant from family and friends. He states he made a poor decision to engage in a consensual sexual relationship with a trainee. The Board carefully considered this contention, and determined that the applicant's misconduct, which included deliberate subterfuge and pre- planned attempts to cover up an inappropriate relationship, cannot be mitigated or excused by the diagnosis of PTSD, because deliberate deception and pre-planned deceit are not symptoms of PTSD. (3) The applicant further contends an upgrade would not only allow him to apply for disability compensation, but would also allow him to become more gainfully employed. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. Further, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. c. The Board denied the request upon finding the separation was both proper and equitable. The Board determined that the documentation contained in the AMHRR, as well as evidence submitted by the applicant, and the available medical evidence did not support a finding that the applicant's discharge was improper or inequitable. 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 despite applying liberal consideration after considering the assigned position of trust as a Drill Sergeant and the violation of that authority. Additionally, the BH diagnoses does not mitigate the offense of adultery, 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 AR20190006499 1