1. Applicant’s Name: a. Application Date: 6 March 2020 b. Date Received: 12 March 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 general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the separation from the Army was not a consequence of actions within the Army, but due to a criminal offense committed as a civilian. The applicant contends there was honorable service and awards were received. Since being incarcerated the applicant has successfully completed every class and program the applicant was eligible for. The applicant desires to reenter military service. b. Board Type and Decision: In a records review conducted on 8 March 2023, and by a 5-0 vote, the Board denied the request upon finding the accepted basis for separation – felony child pornography possession – 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: NIF / AR 135-178 / NIF / NIF / NIF / General (Under Honorable Conditions) b. Date of Discharge: 7 March 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The applicant was informed of the following reasons: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 February 2016 / 8 years (USAR) b. Age at Enlistment / Education / GT Score: 24 / Bachelor’s Degree / 117 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M10, Motor Transport Operator / 2 years, 11 months, 23 days d. Prior Service / Characterizations: RA, 15 March 2016 – 13 July 2016 / HD (IADT) (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The applicant provides court documents which reflects the applicant pled no contest to one count of Possession of Child Pornography, a class 2A felony on 5 June 2018. i. Lost Time / Mode of Return: None j. Applicant Provided and/or AMHHR Listed PTSD / TBI / Behavioral Health Condition(s): None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Personal statement, Court documents, Letter of Support-11, Certificate of Appreciation, Certificate of Completion-6, Test scores, University of Nebraska Certificate, COA, 6. POST SERVICE ACCOMPLISHMENTS: Since being incarcerated the applicant has successfully completed every class and program the applicant was eligible for. 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 135-178 sets forth the policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. The separation policies throughout the different Chapters in this regulation promote the readiness of the Army by providing an orderly means to judge the suitability of persons to serve based on their conduct and their ability to meet required standards of duty performance and discipline. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, and convictions by civil authorities. (1) Chapter 2, paragraph 2-7 prescribes possible characterizations of service include an honorable, general (under honorable conditions), under other than honorable conditions, or uncharacterized if the Soldier is in entry-level status. However, the permissible range of characterization varies based on the reason for separation. (2) Chapter 2, paragraph 2-8, prescribes the characterization is based upon the quality of the Soldier’s service, including the reason for separation, and determined in accordance with standards of acceptable personal conduct and performance of duty as found in the UCMJ, Army regulations, and the time-honored customs and traditions of the Army. The reasons for separation, including the specific circumstances that form the basis for the discharge are considered on the issue of characterization. (3) Chapter 12-2 prescribes a Soldier may be discharged when it is determined the Soldier is unqualified for further military service by reason of a civil conviction. Conviction includes a plea or finding of guilty, a plea of no contest, and all other actions tantamount to finding of guilty, including adjudication withheld, deferred prosecution, entry into adult or juvenile pretrial intervention programs, and any similar disposition of charges. 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 an upgrade to honorable. The AMHRR is void of the complete facts and circumstances concerning the events which led to the applicant’s discharge from the Army Reserve. The applicant’s AMHRR does contain a properly constituted discharge order: Orders 19-059-00055, dated 28 February 2019. The orders indicate the applicant was discharged under the provisions of AR 135-178, with a characterization of service of general (under honorable conditions). The applicant contends, in effect, an upgrade is requested because the separation from the Army was not a consequence of actions within the Army, but due to a criminal offense committed as a civilian. AR 135-178, Chapter 12-2 prescribes a Soldier may be discharged when it is determined the Soldier is unqualified for further service by reason of civil conviction. The applicant contends, in effect, there was honorable service and awards were received. The Board will consider the applicant service accomplishments and the quality of service according to the DODI 1332.28. The applicant desires to reenter military service. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. The applicant’s discharge orders do not reflect the reentry code; therefore, the applicant should contact a local recruiter to determine eligibility to reenlist. Recruiters can best advise a former service member as to the Army’s needs at the time and are required to process waivers of reentry eligibility (RE) codes if appropriate. The applicant states since being incarcerated the applicant has successfully completed every class and program which the applicant was eligible. 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. 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: mild TBI. (2) Did the condition exist or experience occur during military service? No. The Board's Medical Advisor found the Army, during entrance physical exam, diagnosed the applicant with TBI in 2016 based on self-reported history of hitting head in 2010. As this occurred prior to military service and was not exacerbated by service, it does not fall within liberal consideration guidance. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that, based on the available information, the Agency BH advisor cannot make a decision regarding medical mitigation since the basis for separation is not known. If the basis turns out to be possession of child pornography, this offense would not be mitigated by the applicant’s history of remote head injury given that engaging in the aforementioned misconduct is not part of the natural sequelae or history of a head injury. Moreover, incurring a head injury does not affect one’s ability to determine right from wrong and act in accordance with the right. While the applicant reported incurring a head injury in 2004, medical records indicate that this head injury had caused no problems since that time. In fact, at the time of the 2010 medical evaluation, the applicant indicated that health had been excellent. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board considered the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant’s mTBI outweighed the accepted basis for applicant’s separation – felony child pornography possession – for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends an upgrade is requested because the separation from the Army was not a consequence of actions within the Army, but due to a criminal offense committed as a civilian. The Board considered this contention but determined that the felonious offense to which the applicant pled no contest – possession of child pornography – warranted discharge from the military and there is no relief warranted. There is no evidence of the command acting in an arbitrary or capricious manner. (2) The applicant contends there was honorable service and awards were received. 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 possession of child pornography, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. Furthermore, there is no evidence found or presented by the applicant to support any awards in service. 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 mTBI did not mitigate the applicant’s misconduct of possession of child pornography – which the Board found in court documents and used as the accepted basis for separation since the complete facts and circumstances surrounding the discharge are not known due to the absence of the separation packet. 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) As there were no Reasons/SPD Codes/RE-codes listed on the applicant’s discharge paperwork, due to being in the Army Reserves, no upgrade actions are required for these items. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. 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 AR20200005476 1