1. Applicant’s Name: a. Application Date: 9 October 2019 b. Date Received: 21 November 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to general (under honorable conditions). The applicant seeks relief contending, in effect, there was unfair treatment during the discharge process. The applicant served in Iraq and suffers from post-traumatic stress disorder (PTSD) and other related conditions. The applicant was denied treatment for these conditions by the chain of command. The applicant contends due to suicidal thoughts and excessive alcohol consumption, the applicant was admitted to the hospital for suicide watch and detoxification. The applicant was having negative thoughts and went absent without leave (AWOL). The applicant contends there was honorable service prior to the issues leading to the separation. b. Board Type and Decision: In a records review conducted on 17 August 2022, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board’s decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 27 October 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 11 August 2016 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 8 August 2013, the applicant committed sexually abusive contact on a minor and was AWOL from on or about 4 December 2009 to 13 May 2016. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 5 October 2016 (5) Administrative Separation Board: The applicant waived consideration of the case by an administrative separation board. (6) Separation Decision Date / Characterization: 25 October 2016 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 November 2007 / 6 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 108 c. Highest Grade Achieved / MOS / Total Service: E-4 / 21B10, Combat Engineer / 3 years, 8 months, 20 days d. Prior Service / Characterizations: RA, 1 November 2005 – 20 November 2007 / HD e. Overseas Service / Combat Service: SWA / Iraq (23 September 2006 – 10 December 2007) f. Awards and Decorations: ICM-CS-2, VUA, NDSM, GWOTSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: GOMOR, dated 29 January 2010, reflects on or about 30 October 2009, the applicant was apprehended by civilian law enforcement officials in Seattle, Washington, for suspicion of driving under the influence of alcohol. Prior to the apprehension, Officer B of the Seattle Police Department responded to the scene of an accident. Investigation revealed the applicant lost control of a vehicle and struck two cars. Upon contact, an odor of alcoholic beverage was detected in the applicant’s breath. The applicant refused to submit to a Standardized Field Sobriety test. The applicant was then arrested and transported to the Seattle Police Department where the applicant refused to submit to a lawfully requested breathalyzer test. Court Documents reflects the applicant pled guilty to unlawfully communicating with a child under the age of 18 for immoral purposes, which occurred on 9 August 2013. i. Lost Time / Mode of Return: AWOL 11 June 2009 – 23 October 2009 (4 December 2009 – 27 October 2016)v Apprehended by the civil authorities. j. Diagnosed PTSD / TBI / Behavioral Health: A Report of Mental status Evaluation (MSE), dated 14 October 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 PTSD and alcohol dependence. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, DD Form 214, Personal Statement 6. POST SERVICE ACCOMPLISHMENTS: The applicant reports, in part, going to counseling, being part of a dog handler program, and being involved in violence prevention activities. 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) 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, 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. 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 general (under honorable conditions). The applicant contends there was unfair treatment during the discharge process. 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 contends the command denied the treatment for PTSD and other related conditions. The applicant’s AMHRR contains documentation that supports a diagnosis of in- service PTSD. The record shows the applicant underwent a MSE on 14 October 2016, which reflects the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. The separation authority considered the MSE. The applicant contends due to suicidal thoughts, excessive alcohol consumption, and negative thoughts led to the period of AWOL. The applicant was admitted to the hospital for suicide watch and detoxification. The applicant states there was honorable service including a deployment to Iraq. The Board will consider the applicant service accomplishments and the quality of service according to the DODI 1332.28. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: PTSD, TBI, and Anxiety Disorder (DO) NOS. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that military medical records indicate that the PTSD, TBI, Anxiety Disorder (DO) NOS occurred during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined that there while the applicant’s chronic PTSD provides some mitigation for the applicant’s AWOL there are no mitigating BH conditions for the sexually abusive contact on a minor. While the applicant has been diagnosed with PTSD and mild TBI, neither of these conditions mitigates sexually based misconduct toward children given that neither condition affects one’s ability to distinguish right from wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board concurred with the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant’s PTSD, TBI, and Anxiety Disorder (DO) NOS outweighed the basis for applicant’s separation – sexually abusive contact with a minor and AWOL. b. Response to Contention(s): (1) The applicant contends there was unfair treatment during the discharge process and the command denied the treatment for PTSD and other related conditions. 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 the applicant was properly and equitably discharged as the applicant’s PTSD does not mitigate or excuse applicant’s misconduct of sexually abusive contact with a minor and AWOL. (2) The applicant contends due to suicidal thoughts and excessive alcohol consumption, the applicant was admitted to the hospital for suicide watch and detoxification. The Board considered this contention during proceedings, but ultimately determined that this contention alone did not outweigh the basis of separation due to the severity of the offenses. The applicant was properly and equitably discharged. (3) The applicant contends negative thoughts led to the period of AWOL. The Board considered this contention and determined that the applicant was properly and equitably discharged as the applicant’s negative thoughts does not mitigate or excuse applicant’s misconduct of sexually abusive contact with a minor and AWOL. 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, TBI, and Anxiety Disorder (DO) NOS did not excuse or mitigate the offenses of sexually abusive contact with a minor and AWOL. 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 AR20200001670 1