1. Applicant’s Name: a. Application Date: 18 October 2019 b. Date Received: 25 October 2019 c. Counsel: Yes 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests, through counsel, an upgrade to honorable along with a narrative reason and reenlistment eligibility (RE) code change. The applicant’s counsel seeks relief contending, in effect, the applicant was under investigation for a pattern of misconduct, but the command did not wait to find out the results of the investigation. The applicant was undergoing a medical evaluation board (MEB) at the time of the discharge and should have been allowed to finish the process. The applicant has extensive behavioral and medical issues that are service connected, and the Department of Veterans Affairs (VA) has granted the applicant a 100-pecent service-connected disability rating. The fundamental reason for the discharge was substantially deficient. The applicant was not offered or provided rehabilitation and results of the investigation was not reviewed prior to the applicant’s discharge. The command did not have the proper authority to administratively separate the applicant. The discharge does not serve a further purpose and there is no valid equitable purpose in leaving the discharge in place. An upgrade would allow the applicant the opportunity to receive proper benefits and recognition. b. Board Type and Decision: In a records review conducted on 7 September 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, Paragraph 14-12c / JKQ / RE-3 / General, Under Honorable Conditions b. Date of Discharge: 24 March 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 3 August 2016 (2) Basis for Separation: The applicant was informed of the following reasons: On 4 March 2016, the applicant was arrested for soliciting a prostitute. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 11 August 2016 (5) Administrative Separation Board: On 1 December 2016, an administrative separation board found by a preponderance of evidence, the applicant got arrested for soliciting a prostitute and recommended the applicant be separated with a general (under honorable conditions) characterization of service. (6) Separation Decision Date / Characterization: 15 March 2017 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 August 2015 / 4 years b. Age at Enlistment / Education / GT Score: 23 / 1 year College / 99 c. Highest Grade Achieved / MOS / Total Service: E-5 / 13F20, Fire Support Specialist / 5 years, 4 months, 18 days d. Prior Service / Characterizations: RA, 7 November 2011 – 3 August 2015 / HD e. Overseas Service / Combat Service: SWA / Kuwait (11 February 2013 – 11 October 2013 f. Awards and Decorations: AAM, AGCM, NDSM, GWOTSM, GWOTEM, NCOPDR, ASR, OSR, MOVSM, Air Assault Medal g. Performance Ratings: 1 December 2015 – 30 November 2016 / Not Qualified h. Disciplinary Action(s) / Evidentiary Record: A Military Police Desk Blotter reflects the applicant notified CID and reported being held down and kissed by an unknown male at an AIT graduation party on 17 March 2011. The Special Assistant U.S. Attorney, Office of the Staff Judge Advocate, opined there was no probable cause to believe the offense of wrongful sexual contact was committed against the applicant. A Clarksville Police Department, Incident Reports reflects the applicant was arrested for patronizing a prostitute on 4 March 2016. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: A Repot of Mental Status Evaluation, dated 8 April 2016, reflects the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. The applicant was diagnosed with Problems of Adjustment to Life Cycle Transition and Relationship Distress with Spouse or Intimate Partner. The applicant had a positive screen for PTSD. A Psychiatric Evaluation, dated 16 November 2016, reflects the applicant was admitted to the Partial Hospitalization Program for depression. The applicant was diagnosed with Mood Disorder, NOS and Generalized Anxiety Disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Separation Packet, Legal Brief 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) 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 14-12c, 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). 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-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. 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), the issues and documents submitted with the application were carefully reviewed. The applicant requests, through counsel, an upgrade to honorable along with a narrative reason and RE code change The applicant’s counsel requests the narrative reason for the discharge be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-22 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 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214, and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be listed in tables 2-2 or 2-2 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant’s counsel requests the RE code change. RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. The applicant’s counsel contends the applicant was undergoing a MEB at the time of the discharge and should have been allowed to finish the process. The is no evidence in the available record pertaining to a MEB. The applicant’s counsel contends the applicant has extensive behavioral and medical issues that are service connected. The applicant’s AMHRR contains documentation that supports a positive in-service screen for PTSD. The record shows the applicant underwent a mental status evaluation (MSE) on 8 April 2016 which indicates the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. The MSE was considered by the separation authority. A Psychiatric Evaluation, dated 16 November 2016, reflects the applicant was admitted to the Partial Hospitalization Program for depression. The applicant was diagnosed with Mood Disorder, NOS and Generalized Anxiety Disorder. The applicant’s counsel contends VA has granted a 100-percent service-connected disability rating. The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Army when determining a member’s discharge. The applicant’s counsel contends the fundamental reason for the discharge was substantially deficient and the command did not have the proper authority to administratively separate the applicant. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant’s counsel contends the applicant was not offered or provided rehabilitation and results of the investigation was not reviewed prior to the applicant’s discharge. Army Regulation 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the separation authority may waive the rehabilitative requirements in circumstances where common sense and sound judgment indicate such a transfer will serve no useful purpose or produce a quality Soldier. The applicant’s counsel contends the discharge does not serve a further purpose and there is no valid equitable purpose in leaving the discharge in place. Each case is decided on its own merits based on all factors contained in the AMHRR official record or as submitted by the applicant. Changes may be warranted if the Board determines the characterization of service or the reason for discharge or both were improper or inequitable. The applicant’s counsel contends an upgrade would allow the applicant the opportunity to receive proper benefits and recognition. 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. 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: Adjustment Disorder, Generalized Anxiety Disorder (GAD), and Mood Disorder. The applicant has reported a MST. (2) Did the condition exist or experience occur during military service? Yes. The applicant held in-service diagnoses of Adjustment Disorder, GAD, and Mood Disorder. The applicant has reported an MST. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the misconduct is not a progression or sequela of the applicant's diagnoses. (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 Adjustment Disorder, GAD, Mood Disorder, reported MST outweighed the basis for applicant’s separation – solicitation of a prostitute. b. Response to Contention(s): (1) The applicant’s counsel contends the applicant was undergoing a MEB at the time of the discharge and should have been allowed to finish the process. The Board found no evidence of an MEB in any medical records, so the merit of this contention cannot be determined. (2) The applicant’s counsel contends the applicant has extensive behavioral and medical issues that are service connected, and the VA has granted the applicant a 100-percent disability rating. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant’s time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member’s discharge characterization. In this case, the Board determined that the applicant’s misconduct outweighs the applicant’s BH and medical issues. (3) The applicant’s counsel contends the fundamental reason for the discharge was substantially deficient. The Board considered this contention non-persuasive during its deliberations. (4) The applicant’s counsel contends the applicant was not offered or provided rehabilitation and results of the investigation was not reviewed prior to the applicant’s discharge. The Board considered this contention non-persuasive during its deliberations. There is no evidence of the command acting in an arbitrary or capricious manner. (5) The applicant’s counsel contends the command did not have the proper authority to administratively separate the applicant. The Board found insufficient merit to this contention without further evidence to support the claim. The separation was approved by the appropriate general court martial convening authority. (6) The applicant’s counsel contends the discharge does not serve a further purpose and there is no valid equitable purpose in leaving the discharge in place. The Board considered this contention and determined that the discharge still holds a purpose – to demonstrate the applicant did not serve honorably, culminating in the decision to solicit a prostitute. (7) The applicant’s counsel contends an upgrade would allow the applicant the opportunity to receive proper benefits and recognition. 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. c. The Board determined that the discharge is, at this time, proper and equitable, considering 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 Adjustment Disorder, GAD, Mood Disorder, reported MST did not excuse or mitigate the offenses of soliciting a prostitute. 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 AR20200000384 1