1. Applicant’s Name: a. Application Date: 23 September 2019 b. Date Received: 26 September 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 honorable conditions. The applicant seeks relief contending, in effect, he was taught to reprimand Soldiers as he had been reprimanded, which was pushups for being late, not letting calculators be used for math in sniper school and having them run or do pushups due to them not knowing. The applicant states he was told this was a form of “hazing”, which if so, this was done to him. The applicant states he was not given a chance to explain and represent himself as all questions were “yes” or “no”. The applicant states the SHARP allegations brought against him were in no way, shape, or form, with any sexual or malicious intent. They were simply categorized as “locker room horseplay”. The applicant further states he would never use his rank, position, or grade for personal satisfaction or gain. The charges against the applicant were so profoundly against his character as a Christian man and Soldier. The applicant says the situation was blown far out of proportion and turned into something that could have been handled at the lowest level with something as simple as a conversation or counseling. The training and physical activities the applicant ordered his Soldiers to do were nothing he hadn’t done himself or wouldn’t do alongside them. The applicant states he fell back onto his training as a Soldier and sniper, as well as advice from peers and superiors on how to conduct corrective training in all situations. The applicant does not believe that this form of discharge accurately represents the type of career he had in the amount of time he served. The applicant had every intention of reenlisting and continuing to serve before he was unfortunately chaptered early due to the allegations. The applicant states he does not deserve to have this form of discharge hang over his head as he tries to move forward with his civilian life. In a records review conducted on 3 June 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: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 4 September 2019 c. Separation Facts: (1) Date Charges Preferred (DD Form 458, Charge Sheet): On 15 July 2015 the applicant was charged with: Charge I: Violating Article 92, UCMJ The specification: for violating a lawful regulation, paragraph 4-19, AR 600-20, Army Command Policy dated 6 November 2014, by willfully bullying a private, to wit: grabbing his eye protection and throwing it on the roof, threatened to apply corrective training to any Soldier that assisted him in recovering them and then apply corrective training to the Soldier who attempted to help him between on or about 11 October 2018 and or about 19 November 2018. Charge II: Violating Article 93, UCMJ Specification 1: for on divers occasions did maltreat a private, a person subject to his orders, by on divers occasions grabbing his penis, ordering him to take a shower together, ordering him to turn around while in the shower to show the applicant his penis, opening Private D.J.’s shower curtain while he was showering, making comments about his penis and asking him to show his penis to see if it was circumcised. Specification 2: for on divers occasions did maltreat a PFC, a person subject to his orders, by making him perform physical exercises for hours where the exercise was not tied to a deficiency, using physical exercises to remind him of his “place,” ordering him to eat dinner together or he would have to do more corrective training, opening a PFC’s shower for others to see, quizzing him in front of a group on math problems that could not be solved without a calculator, making fun of PFC H.’s penis, and verbally harassing him by calling him fat and stupid on divers occasions. Charge III: Violating Article 107, UCMJ Specification: for intending to deceive a Special Agent, an official statement, to wit: I never grabbed Private J.’s penis to wake him up or words to that effect which statement was totally false and know by the applicant to be false on 15 February 2019. Charge IV: Violating Article 120, UCMJ Specification 1: for committing sexual contact upon a private, to wit: by grabbing his penis with his hands when the accused knew or reasonably should have known that he was asleep, with an intent to abuse, humiliate, harass, or degrade him between on or about 11 October 2018 and on or about 19 November 2018. Specification 2: for committing sexual contact upon a private, to wit: by grabbing his penis with his hands by causing bodily harm to him, to wit: grabbing his penis without his consent, with an intent to abuse, humiliate, harass, or degrade him between on or about 11 October 2018 and on or about 19 November 2018. Charge V: Violating Article 120c, UCMJ Specification 1: for knowingly and wrongfully viewing the private area of a PFC, without his consent and under circumstances in which he had a reasonable expectation of privacy between on or about 10 January 2019 and on or about 28 January 2019. Specification 2: for knowingly and wrongfully viewing the private area of a private, without his consent and under circumstances in which he had a reasonable expectation of privacy between on or about 10 January 2019 and on or about 28 January 2019. Specification 3: for knowingly and wrongfully viewing the private area of a private, without his consent and under circumstances in which he had a reasonable expectation of privacy between on or about 11 October 2018 and on or about 20 November 2018. (2) Legal Consultation Date: NIF (3) Basis for Separation: Pursuant to the applicant’s request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: NIF (5) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 July 2015 / 4 years, 19 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 115 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 4 years, 1 month, 21 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM-2, GCM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: DD Form 458 Charge sheet as listed in section 3(c). i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; DD Form 214; copies of military awards; nine third-party letters. 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 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. (6) Paragraph 10-8a stipulates a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. (See chap 3, sec II.) (7) Paragraph 10b stipulates Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be improper. 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 “KFS” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, In Lieu of Trial by Court-Martial. 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 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 record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of the Army Military Human Resource Record (AMHRR) confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, in consultation with legal counsel, voluntarily requested, in writing, a discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and indicated an understanding an under other than honorable conditions discharge could be received, and the discharge would have a significant effect on eligibility for veterans' benefits. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends the SHARP allegations brought against him were against his character as a Christian man and Soldier. The record does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the SHARP allegations leading to the discharge in no way, shape, or form, were committed with any sexual or malicious intent. The record indicates the applicant committed many discrediting offenses. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends good service. The Board considered the service accomplishments and the quality of service. 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. Applicant was diagnosed with the following potentially mitigating BH condition: mild TBI. (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found the applicant's diagnosis of mild TBI was made when he was on active duty. (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 incurred two mild head injuries while on active duty (one for which he did not seek medical attention), the record documents complete recovery from these mild head injuries. There is no indication that they played any role at all in his misconduct. (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 any of the applicant’s medical condition of mild TBI completely outweighed the basis for applicant’s separation for In Lieu of Trial by Court-Martial. b. Response to Contentions: (1) The applicant contends the SHARP allegations brought against him were against his character as a Christian man and Soldier. The Board considered this contention and the applicant’s quality of service during the proceedings. (2) The applicant contends the SHARP allegations leading to the discharge were in no way, shape, or form, with any sexual or malicious intent. The applicant, in consultation with legal counsel, voluntarily requested, in writing, a discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and indicated an understanding an under other than honorable conditions discharge could be received, and the discharge would have a significant effect on eligibility for veterans' benefits. (3) The applicant contends good service. The Board determined the applicant’s discharge was appropriate because the quality of the applicant’s 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 bullying, maltreatment, sexual harassment, and sexual contact, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. c. 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 contentions that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration, the applicant’s mild TBI did not mitigate the offenses of by willfully bullying a private, to wit: grabbing his eye protection and throwing it on the roof, threatened to apply corrective training to any Soldier that assisted him in recovering them and then apply corrective training to the Soldier who attempted to help him; on divers occasions did maltreat a private, a person subject to his orders, by on divers occasions grabbing his penis, ordering him to take a shower together, ordering him to turn around while in the shower to show the applicant his penis, opening Private D.J.’s shower curtain while he was showering, making comments about his penis and asking him to show his penis to see if it was circumcised; for on divers occasions did maltreat a PFC, a person subject to his orders, by making him perform physical exercises for hours where the exercise was not tied to a deficiency, using physical exercises to remind him of his “place,” ordering him to eat dinner together or he would have to do more corrective training, opening a PFC’s shower for others to see, quizzing him in front of a group on math problems that could not be solved without a calculator, making fun of PFC H.’s penis, and verbally harassing him by calling him fat and stupid on divers occasions; for intending to deceive a Special Agent, an official statement, to wit: I never grabbed Private J.’s penis to wake him up or words to that effect which statement was totally false; for committing sexual contact upon a private, to wit: by grabbing his penis with his hands by causing bodily harm to him and when the accused knew or reasonably should have known that he was asleep, with an intent to abuse, humiliate, harass, or degrade him; for knowingly and wrongfully viewing the private area of a PFC and private, without his consent and under circumstances in which he had a reasonable expectation of privacy. The applicant did not supply sufficient independent corroborating evidence to support contentions, 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 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 AR20190012639 1