1. Applicant's Name: a. Application Date: 10 October 2019 b. Date Received: 15 October 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the discharge is unjust and is preventing the use of the GI Bill. The applicant reports being medically discharged for a short period of time and then being reactivated to be punished and discharged under honorable conditions. In a records review conducted on 22 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: Misconduct (Civil Conviction) / AR 635-200 / Chapter 14, Sec II / JKB / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 20 December 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 26 March 2013 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was convicted of statutory rape in Tennessee on 29 September 2010. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 2 April 2013 (5) Administrative Separation Board: On 12 August 2013, the board found the allegations in the notice of administrative separation was supported by a preponderance of evidence and recommended the applicant be separated from the active service with a general (under honorable conditions) characterization of service. (6) Separation Decision Date / Characterization: 26 November 2013 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 April 2008 / 3 years b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-6 / 11B10, Infantryman / 9 years, 10 months, 9 days d. Prior Service / Characterizations: RA, 12 February 2004 - 21 April 2008 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (3 March 2006 - 10 June 2007), (16 December 2008 - 28 December 2009) f. Awards and Decorations: ACM-CS-3, ARCOM-2, AAM-3, AGCM-2, NDSM, GWOTSM, NCOPDR, OSR-2, NATO Medal, CIB, EIB g. Performance Ratings: 1 November 2007 - 30 June 2008 / Fully Capable 3 June 2008 - 2 June 2009 / Fully Capable 3 June 2009 - 2 June 2010 / Fully Capable 3 June 2010 - 7 March 2011 / Fully Capable 8 March 2011 - 15 November 2011 / Marginal 16 November 2011 - 6 August 2012 / Marginal h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 6 August 2012, reflects the applicant failed to obey a lawful order on or about 12 July 2012 and was derelict in the performance of duties. The punishment consisted of reduction to specialist/E-4; forfeiture of $1,181 pay per month for 2 months, suspended, to be automatically remitted if not vacated before 2 February 2013; and extra duty for 45 days, suspended, to be automatically remitted if not vacated before 2 February 2013. On 18 December 2012, the suspension of the punishment of forfeiture of $1,181 pay for 2 months and extra duty for 45 days was vacated due to the applicant failure to go at the prescribed time to the appointed place of duty on or about 7 December 2012 and again on or about 16 November 2012. The applicant was counseled on multiple occasions for various forms of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: An Informal Physical Evaluation (PEB) Proceeding, which convened on 14 February 2013, found the applicant physically unfit due to post-traumatic stress disorder, headache syndrome, and intervertebral disc degeneration, lumbar. The PEB recommended a rating of 80-percent and placement on the TDRL with reexamination during November 2013. Orders 064-2247, dated 5 March 2013, reflects the applicant was placed on the TDRL effective 22 May 2013. On 7 June 2013, the orders placing the applicant on the TDRL were revoked by Orders 158- 2216. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 6. POST SERVICE ACCOMPLISHMENTS: The applicant reports being an outstanding and active citizen. 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 Bods 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) 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. (5) 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. (6) Paragraph 14-5, states a Soldier may be considered for discharge when convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty. 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's Army Military Human Resource Record (AMHRR) of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the discharge is unjust and is preventing the use of 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 reports being medically discharged for a short period of time and then being reactivated to be punished and discharged under honorable conditions. Department of Defense disability regulations do not preclude a disciplinary separation while undergoing a medical board. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board and is subsequently processed for an administrative involuntary separation or is referred to a court-martial for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non- disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical process is stopped and the board report is filed in the member's medical record. 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 the following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: PTSD, mild TBI, Major Depressive Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed with PTSD, TBI, MDD while 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. Review of the military medical record indicates that the applicant reported being arrested for statutory rape in 2002. As applicant did not enter the military until 2004, this pre- service misconduct does not fall under the purview of the Liberal Consideration guidance. (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): (1) The applicant contends the discharge is preventing the use of 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. (2) The applicant reports being medically discharged for a short period of time and then being reactivated to be punished and discharged under honorable conditions. The Board determined the medical evaluation boards are halted and often overridden when acts of misconduct are serious enough to warrant such actions. Since the applicant was on the temporary disability retirement list (TDRL), Army Regulations still applied. In this case, the Board determined that the applicant's pre-service rape conviction which was adjudicated in- service warranted the proper and equitable GD discharge. 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 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 because, despite applying liberal consideration of all the evidence before the Board, the applicant's PTSD, mild TBI, and Major Depressive Disorder did not excuse or mitigate the offenses of statutory rape, which pre-dated military service. 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 AR20190015192 1