1. Applicant's Name: a. Application Date: 2 December 2018 b. Date Received: 11 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). The applicant seeks relief contending, in effect, he was flagged for 18 months pending legal action with the state. During this time the Department of the Army released a memorandum indicating anyone flagged for more than 12 months for any reason would be processed for separation with general, under honorable conditions discharge; however, his unit failed to comply and waited until he took a Plea Bargen at 18 months and then chaptered him out with an Other Than Honorable Conditions Discharge with a reduction to private/E-1 due to a misdemeanor charge for which he was incarcerated for only 8 months. The applicant also contends he should have only been reduced one grade. In a records review conducted on 7 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, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 8 November 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 15 May 2018 (2) Basis for Separation: The applicant was informed of the following reasons: (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 21 May 2018 (5) Administrative Separation Board: 20 September 2018, the board found by a preponderance of the evidence that the applicant wrongfully possessed and distributed child pornography. The board recommended the applicant be separated from the military because of commission of a serious offense and be issued an Under Other Than Honorable discharge. (6) Separation Decision Date / Characterization: 15 October 2018 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 January 2013 / Indefinite b. Age at Enlistment / Education / GT Score: 19 / 2 years college / 101 c. Highest Grade Achieved / MOS / Total Service: E-6 / 31B, Military Police / 16 years, 9 months, 2 days d. Prior Service / Characterizations: RA, 7 February 2002 - 2 January 2013 / HD e. Overseas Service / Combat Service: Korea, SWA/ Iraq x 4 (18 February 2004 - 17 February 2005), (13 January 2006 - 17 April 2006), (15 May 2007 - 29 July 2008) f. Awards and Decorations: ARCOM-5, AAM, MUC-2, USA-USAF-PUC, AGCM-3, NDSM, GWOTEM, GWOTSM, KDSM, ICM-2-CS, NCO Professional Development Ribbon-2, ASR, OSR-4, Silver Basic Recruiter Badge, Driver and Mechanic Badge-Driver-Wheeled Vehicle(s) Clasp g. Performance Ratings: 1 January 2008 - 31 October 2008 / Fully Capable 1 November 2008 - 31 October 2009 / Fully Capable 1 November 2009 - 31 October 2010 / Fully Capable 1 November 2010 - 31 October 2011 / Fully Capable 1 November 2011 - 31 October 2012 / Fully Capable 1 November 2012 - 31 October 2013 / Fully Capable 1 November 2013 - 10 February 2014 / Among The Best 11 February 2014 - 31 August 2014 / Among The Best 1 September 2014 - 28 July 2015 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Mental Status Evaluation, dated 9 May 2018, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in the 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, DD Form 149, DD Form 214 6. POST SERVICE ACCOMPLISHMENTS: None submitted with 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 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 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. 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 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 provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained on Active Duty. The applicant contends his unit failed to comply with a memorandum released by the Department of the Army indicating anyone flagged for more than 12 months for any reason would be processed for separation with general, under honorable conditions discharge The applicant also contends he should have only been reduced one grade. 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 has been diagnosed with PTSD by the VA. (2) Did the condition exist or experience occur during military service? YES, The VA has based the applicant's diagnosis of PTSD on trauma he experienced while deployed on active duty. (3) Does the condition or experience actually excuse or mitigate the discharge? NO, while he has been diagnosed with PTSD by the VA, the Board found this diagnosis does not mitigate the offense of possession of child pornography. While PTSD is associated with impulsive, short term decisions, it does not prevent an individual from understanding the difference between right and wrong. Further, possession of child pornography requires deliberate action, often to hide the possession from others. Finally, the Kurta memo specifically states that premeditated misconduct is not generally excused by PTSD except in the context of substance-seeking behaviors or efforts to self-medicate symptoms of a mental health condition. Liberal Consideration does not mitigate instances of premeditated misconduct such as, in this case, possession of child pornography. (4) Does the condition or experience outweigh the discharge? NO, the ADRB decided that possession of child pornography is not outweighed by PTSD. PTSD does not prevent an individual from understanding the difference between right and wrong. The Kurta memo is clear that Liberal Consideration does not mitigate instances of premeditated misconduct such as, in this case, possession of child pornography. b. The ADRB determined that the applicant's characterization of service was proper and equitable. c. Response to Contentions: (1) The applicant contends that his unit failed to comply with a memorandum released by the Department of the Army indicating anyone flagged for more than 12 months for any reason would be processed for separation with general, under honorable conditions discharge. There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted. The applicant's statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge. Based on the available record, 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 applicant also contends he should have only been reduced one grade. This is not a matter upon which the Army Discharge Review Board grants a change in discharge because it does not raise a matter of fact, law, procedure, or discretion related to the discharge process. The applicant should apply to the Army Board of Military Corrections using Form DD 149. d. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service. The Kurta memo states that Liberal Consideration does not mitigate instances of premeditated misconduct such as, in this case, possession of child pornography. The ADRB decided that the applicant's possession of child pornography led to an appropriate discharge characterization of Under Other than Honorable Conditions, because such misconduct constitutes a significant departure from the conduct expected of Soldiers in the Army that is not outweighed by any condition or experience the applicant had during his period of enlistment. Based on the available record, 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 reason for discharge because possession of child pornography is a Serious Offense. (3) Because the characterization and reason were not changed, the SPD/RE codes will not change. 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 AR20190007981 1