1. Applicant’s Name: a. Application Date: 16 November 2019 b. Date Received: 8 January 2020 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 conditions. The applicant seeks relief contending, in effect, the applicant did not appear before a UCMJ military court, nor did the applicant face the accuser, questioned for over 12 hours with no food or water offered and no attorney offered, nor present. The applicant states the investigators made threatening remarks that both jeopardized the accuser and the applicant. The applicant states the allegation was well beyond the 5-year statute at that time. The applicant states statement was signed under duress, and was not fully aware, nor understand, the consequences and stigma that the discharge characterization would bring later in life. The applicant states the request for an upgrade is to be eligible for benefits to include a military burial ceremony, as well as to eliminate the stigma and embarrassment the discharge has caused, to include mental anguish. The applicant states a wish to display a Veteran License Plate on vehicle, which currently is unable to have. The applicant has a family and provides for and takes good care of, and they are proud of the applicant’s service. The applicant states the mistakes made in the past, which are far before the time the applicant became an NCO, are in the past and the applicant has grown and moved forward. The applicant states being a God- fearing believer in second chances and forgiveness of shortcomings and failure. The applicant states being a bank manager for over 12 years, gives back to the community by teaching financial literacy classes in various community settings and organizations, as well as teaching faith formation classes, every Sunday, at the local church. The applicant further states being a proud family man and a want to be able to convey that pride in and around the community and neighborhood. The applicant states being sincere and just and has mentored many leaders within the Army and in a civilian career. As a former Staff Sergeant, the applicant states being a part of many important missions that were instrumental to the security of the nation and to the Armed Forces and takes great pride in the accomplishments and wants children to be filled with that same pride knowing what the applicant did for the nation just as the applicant’s father during the Korean War. b. Board Type and Decision: In a records review conducted on 16 November 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 (Commission of a Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 21 January 2005 c. Separation Facts: (1) Date of Notification of Intent to Separate: 22 November 2004 (2) Basis for Separation: The applicant was informed of the following reasons: In 1995 and 1996, the applicant committed indecent acts with stepdaughter, a child under the age of 16. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 24 November 2004 (5) Administrative Separation Board: On 24 November 2004, the applicant conditionally waived consideration of the case before an administrative separate board, contingent upon receiving a characterization of service no less favorable than general (under honorable conditions) discharge. On 7 January 2005, the applicant again consulted with legal counsel and waived consideration of the case before an administrative separation board even though the applicant understood that an under other than honorable conditions discharge would be issued to the applicant. (6) Separation Decision Date / Characterization: 18 January 2005 / Under Other Than Honorable Conditions See Note #1 in Summary of Facts 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 December 2003 / Indefinite b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 100 c. Highest Grade Achieved / MOS / Total Service: E-6 / 25D10, Telecommunications Operator-Maintainer / 12 years, 2 months, 26 days d. Prior Service / Characterizations: RA, 2 December 1992 – 6 October 1997 / HD RA, 7 October 1997 – 9 January 2001 / HD RA, 10 January 2001 – 7 March 2002 / HD RA, 8 March 2002 – 3 December 2003 / HD (Concurrent Service) e. Overseas Service / Combat Service: Kuwait, Belgium See Note #2 in Summary of Facts f. Awards and Decorations: ARCOM-3, JSAM, AAM-3, GCM-4, NDSM, AFEM, GWOTSM, NCOPDR-N2, ASR, OSR g. Performance Ratings: 1 February 1999 – 1 June 2000 / Among the Best 1 July 2000 – 1 June 2001 / Fully Capable 1 July 2001 – 1 May 2004 / Among the Best h. Disciplinary Action(s) / Evidentiary Record: CID Report of Investigation - Final, dated 26 April 2004, reflects an investigation established probable cause to believe the applicant committed the offense of indecent acts or liberties with a child under the age of 16; juvenile. One Developmental Counseling Forms, for notification of separation under the provisions of AR 635-200. Report of Mental Status Evaluation, dated 30 September 2004, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. On 18 January 2005, with the approval of an under other than honorable discharge, the separating authority directed the applicant be reduced in rank to Private (E-1). i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; Marriage Certificate; State of Georgia Certificate of Live Birth of children; Certificate of Baptism; seven third-party letters; copies of military personnel records; Certificate of Appointment of Notary Public; Manager Overall Evaluation; College Transcripts; Certificate of Education Completion; Certificates of Course Completion; Security and Privacy Requirements Memorandum; Military Certificates of Training; Employment Promotions and Awards. 6. POST SERVICE ACCOMPLISHMENTS: The applicant submitted numerous employment awards, received a certification of education completion from work and has married and had children. 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 waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: 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 requests an upgrade to honorable. The applicant’s Army Military Human Resource Record (AMHRR) of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends being questioned for 12 hours with no water, food or attorney offered. The applicant states did not appear before a UMCJ military court, nor did the applicant face accuser and the investigators made threatening remarks compelling the applicant to sign a statement under duress and completely unaware of the consequences of the discharge and allegation were well beyond the 5-year statute at that time. On 7 January 2005, the applicant again consulted with legal counsel and waived consideration of the case before an administrative separation board even though the applicant understood that an under other than honorable conditions discharge would be issued to the applicant. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends an upgrade of the discharge would allow veterans benefits to include a military burial. Eligibility for veteran’s benefits 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 youthfulness affected behavior as the mistakes made were well before becoming an NCO and are in the past, applicant has grown and moved forward from them. The AMHRR shows the applicant met entrance qualification standards to include age. The applicant contends good service. The Board will consider the applicant service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends being a bank manager for over 12 years, has given back to the community by teaching financial literacy classes in various community settings and organizations, as well as teaching faith formation classes, every Sunday, at the local church. The applicant is also married with a family and takes care of and provides for. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. Note: #1 On 18 January 2005, the separation authority approved the applicant’s separation under the provisions of AR 635-200, Chapter 14-12c, Misconduct (Commission of a Serious Offense); however, the DD Form 214 shows the separation authority as AR 635-200, Chapter 14-12c(1) Misconduct. Note #2 The applicant served overseas in Kuwait for 13 months and Belgium for 12 months; however, the DD Form 214 does not reflect this overseas 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? No. The Board’s Medical Advisor reviewed DoD and VA medical records and found the applicant had no mitigating BH diagnoses. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused or mitigated a discharge. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contentions: (1) The applicant contends being questioned for 12 hours with no water, food or attorney offered; did not appear before a UMCJ military court; nor face accuser and the investigators made threatening remarks compelling signature of a statement under duress and completely unaware of the consequences of this discharge; and allegations were well beyond the 5-year statute at that time. The Board considered this contention however, due to the nature of the misconduct panel members unanimously agreed the current discharge is appropriate. (2) The applicant contends an upgrade of the discharge would allow veterans benefits to include a military burial. The Board considered this contention and determined that eligibility for Veteran's benefits, to include healthcare, VA loans, and burials 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. (3) The applicant contends youthfulness affected behavior and the mistakes made were before becoming an NCO and are in the past as he has grown and moved forward from them. Due to the seriousness of the misconduct including conscious, deliberate decisions the applicant made when presented with challenges, youthful indiscretion does not excuse the misconduct. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. In this case, the Board determined that due to the nature of the misconduct panel members unanimously agreed the current discharge is appropriate. (4) The applicant contends good service. The Board considered the totality of the applicant’s service record but 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 committing indecent acts with a minor, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (5) The applicant contends being a bank manager for over 12 years, giving back to the community by teaching financial literacy classes in various community settings and organizations, as well as teaching faith formation classes, every Sunday, at the local church; and the applicant is also married and provides for and takes care of family. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge must be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in- service misconduct was an aberration and not indicative of the member’s overall character. In this case, the Board considered this contention and determined that due to the nature of the misconduct, panel members unanimously agreed the current discharge is appropriate. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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, the applicant had no BH diagnoses which mitigate the offenses of indecent actions to a minor and the totality of the applicant’s service did not outweigh the misconduct. 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 because indecent actions to a minor is a serious offense, and 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 Changes c. Change Reason / SPD code to: No Changes d. Change RE Code to: No Changes e. Change Authority to: No Changes 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 AR20200000697 1