1. Applicant’s Name: a. Application Date: 6 May 2019 b. Date Received: 10 June 2019 c. Counsel: None 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 requests an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant’s life and career were put on hold over a false accusation on 7 February 2017. The applicant was treated unfairly, like a criminal, and like a person with the plague. Even US Army WTF moments posted the applicant’s situation on their popular Facebook page. People found the applicant’s address and the families name and sent the applicant a wave of constant death threats. The applicant was given special rules and special instructions with no chance to advance and essentially no future. The case was dragged out for almost three years, only to be dismissed for lack of evidence to bring the case to trial. After the Army turned its back on the applicant and as of 25 March 2019, everything has been terminated and dismissed. The applicant has been given life back after the applicant suffered non- stop every day to the point the applicant was ready to take the applicant’s own life. The Army gave the applicant a sham of a chance with the separation hearing in which the applicant was advised not to defend oneself properly and given an other than honorable discharge. The applicant served the country, unit, and brothers and sisters proudly and deserves an honorable discharge to continue and finish the applicant’s education. The applicant swore to defend the people and the guaranteed rights as American citizens. The applicant watched those rights go out the window with the trial and even had to listen to a senior officer say, “we do not need to prove anything above a doubt, we do not require the burden of proof.” The applicant watched and heard the Army turn its back on one of its own over an investigation which only ended when the applicant chose to take it to trial and call their bluff. The applicant does not expect to ever recover fully. When the applicant returned to the unit, the applicant had to see a special officer to make sure everything was okay mentally. The applicant was told to say nothing bothered the applicant to avoid early separation. Since separation, the applicant has had a vehicle repossessed, been homeless and has lived in a shelter until February 2019. Having the applicant’s other than honorable discharge over-turned to honorable, which represents the applicant’s honorable service, would be a step in the right direction. If the option is available, the applicant would rejoin the military and continue to serve. b. Board Type and Decision: In a records review conducted on 17 August 2022, 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-4 / Under Other Than Honorable Conditions b. Date of Discharge: 7 August 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 February 2018 (2) Basis for Separation: The applicant was informed of the following reasons: Between on or about 25 November 2016 and on or about 2 January 2017, while on leave at the applicant’s parent’s residence, the applicant wrongfully possessed files containing child pornography. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 15 February 2018 (5) Administrative Separation Board: On 15 February 2018, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon the retention in the United States Army. On 22 March 2018, the separation authority disapproved the conditional waiver and directed an administrative separation board to determine whether the applicant should be separated. On 16 April 2018, the applicant was notified to appear before an administrative separation board and advised of rights. On 18 May 2018, the administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions. On 13 July 2018, the separation authority approved the findings and recommendations of the administrative separation board. (6) Separation Decision Date / Characterization: 13 July 2018 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 October 2015 / 3 years b. Age at Enlistment / Education / GT Score: 29 / HS Graduate / 104 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92Y1P, Unit Supply Specialist / 5 years, 5 months, 12 days d. Prior Service / Characterizations: RA, 26 February 2013 – 1 October 2015 / HD e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM, AGCM, NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Law Enforcement Report, dated 11 February 2017, report summary shows Polk County Sheriff’s Office, notified CID a Soldier was suspected of downloading child pornography. PCSO reported law enforcement software determined an IP address at a residence in Lakeland, FL was advertising over 50 files containing known child pornography. The applicant’s parent lived at the residence and the IP address was registered to the applicant. Law Enforcement Report, dated 10 July 2017, reflects Fort Bragg Liaison was notified by the Cumberland Country Sheriff Department of a fugitive warrant for arrest for possession of child pornography committed by an active duty service member within their jurisdiction. Investigation disclosed a Deputy Sheriff arrested the applicant for possession of child pornography. The applicant was transported to the Cumberland County Detention Center where the applicant was further processed. The applicant appeared before Magistrate who did not release the applicant on a $100,00 secured bond with a court date of 29 July 2017. Law Enforcement Report, dated 8 August 2017, reflects a Magistrate Judge signed a probable cause warrant for ten counts of Possession of Child Pornography, under the Magistrates Orders, the applicant was transferred to the Cumberland County Jail and subsequently extradited to the Polk County Jail, Winter Haven, FL. Law Enforcement Report, dated 8 August 2017, report summary shows The Polk County Sheriff’s Office, reported law enforcement software determined an IP address associated with a residence within their jurisdiction and registered to the applicant contained suspected child pornography. A forensic examination of the applicant’s electronic devices revealed several sexually explicit images and videos of children. Forensic Report 2016-58441, concluded the computer examined was used to download and view child pornography using the file sharing program Shareaza. Based on user account information and internet history and usage, the main user of the computer was the applicant. Report of Mental Status Evaluation, dated 16 November 2017, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible, can distinguish right from wrong, and possess sufficient mental capacity to understand and participate intelligently as a respondent in any administrative proceedings. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Notice of Nolle Prosequi; and DD Form 214. 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 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 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. 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaivable 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 record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the applicant’s life and career were put on hold over false accusations. After the Army turned its back on the applicant the charges were dismissed. The applicant provided evidence the charges were dismissed because further development and forensic analysis by the arresting law enforcement agency indicated the venue, which is a necessary element for conviction, cannot be established beyond every reasonable doubt. While abundant probable cause existed to prove venue for arrest, the higher burden of proof necessary at trial could not be met at the time. The document did not reflect when the charges were dismissed. The applicant contends being told not to report any things were bothering the applicant. The applicant’s Army Military Human Resource Record (AMHRR) contains no documentation of PTSD diagnosis. The applicant did not submit any evidence to support the contention the discharge resulted from any medical condition. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends an upgrade would allow educational benefits through the GI Bill. 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. The applicant contends, since being discharged, the applicant has had a vehicle repossessed and has been homeless. Eligibility for housing support program benefits for Veterans 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. Moreover, all veterans at risk for homelessness or attempting to exit homelessness can request immediate assistance by calling the National Call Center for Homeless Veterans hotline at 1-877-424-3838 for free and confidential assistance. The applicant desires to rejoin the military and continue to serve. The applicant requests a change to the characterization of service to rejoin the Army. At the time of discharge, the applicant received an under other than honorable conditions characterization of service. Army Regulation 601-210, chapter 4, stipulates an under other than honorable conditions discharge constitutes a non-waivable disqualification; thus, the applicant is no longer eligible for reenlistment. 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 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: Generalized Anxiety DO (GAD). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found a VA determination of service connection for GAD (0%) which establishes that it occurred during 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. Applicant’s 16 Nov 2017 separation MSE determined that, while the applicant has been diagnosed with GAD and has also reported a history of MST, neither of these conditions mitigates possessing child pornography as neither condition affects 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 concurred with the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant’s GAD outweighed the basis for applicant’s separation – possessing child pornography. b. Response to Contention(s): (1) The applicant contends the applicant’s life and career were put on hold over false accusations. After the Army turned its back on the applicant the charges were dismissed. The Board considered this contention during proceedings and determined that the assertion alone did not outweigh the basis of separation due to the severity of the offenses. A Nolle Prosequi decision by the Assistant State Attorney Office is not exculpatory, merely a decision not to prosecute. The applicant was properly and equitably discharged. (2) The applicant contends being told not to report any things were bothering the applicant. The Board considered this contention, but determined that the Army has many legitimate avenues available to service members requesting assistance with legal issues or concerns. The Board concluded that the applicant was properly and equitably discharged. (3) The applicant contends an upgrade would allow educational benefits through the GI Bill. The Board determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do 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. (4) The applicant desires to rejoin the military and continue to serve. The Board considered this contention and determined the applicant was properly and equitably discharged. Recruiters can best advise a former service member as to the Army’s needs at the time and are required to process waivers of reentry eligibility (RE) codes, if appropriate. d. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. 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. e. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant’s GAD did not excuse or mitigate the offenses of possessing child pornography. 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, 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. 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 AR20190009035 1