1. Applicant’s Name: a. Application Date: 11 March 2020 b. Date Received: 17 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 under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, false allegations of sexual misconduct led to the separation. The applicant spent over a year in jail but was subsequently found innocent of all charges. The applicant lost everything and is extremely depressed. The applicant served honorably including two deployments. b. Board Type and Decision: In a records review conducted on 24 February 2023, 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: 14 November 2018 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: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 October 2017 / Indefinite b. Age at Enlistment / Education / GT Score: 33 / HS Graduate / 113 c. Highest Grade Achieved / MOS / Total Service: E-6 / 29E30, Electronic Warfare Specialist / 15 years, 16 days d. Prior Service / Characterizations: RA, 29 October 2003 – 2 October 2017 / HD e. Overseas Service / Combat Service: SAW / Iraq (13 March 2009 – 3 March 2010), Afghanistan (11 June 2011 – 29 December 2011) f. Awards and Decorations: DMSM, ARCOM-2, AAM, VUA, AGCM-4, NDSM, GWOTSM, ACM-CS-2, ICM-CS, NCOPDR-2, ASR, OSR-3, CAB, Parachutist Badge, Expert Marksmanship Qualification Badge-Carbine Bar, Driver and Mechanic Badge-Driver-Wheeled Vehicle(s) Clasp g. Performance Ratings: 1 June 2006 – 31 May 2007 / Fully Capable 1 April 2008 – 15 October 2008 / Fully Capable 16 October 2008 – 15 October 2009 / Among The Best 16 October 2009 – 15 October 2010 / Among The Best 15 October 2010 – 12 June 20011 / Among The Best 12 June 2011 – 27 December 2011 / Fully Capable 28 December 2011 – 20 October 2012 / Among The Best 21 October 2012 – 20 October 2013 / Fully Capable 21 October 2013 – 18 March 2014 / Fully Capable 19 March 2014 – 18 March 2015 / Fully Capable 19 March 2015 – 17 March 2016 / Qualified 18 March 2016 – 17 March 2017 / Highly Qualified 18 March 2017 – 10 January 2018 / Highly Qualified h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 20 December 2011, reflects the applicant failed to obey a lawful order by wrongfully fraternizing with LCPL M, a subordinate Soldier, in which conduct compromised or appeared to compromise the integrity of supervisory authority, by remaining inside a locked vehicle partially clothed with LCPL M. The punishment consisted of reduction to specialist/E-4, suspended, to be automatically remitted if not vacated before 20 June 2012; forfeiture of $1,000 pay per month for two months; and extra duty for 45 days. 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, DD Form 214, Personal statement, Court Documents, Letter from criminal attorney 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) 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), the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable. The applicant’s service AMHRR is void of the specific facts and circumstances concerning the events which led to the applicant discharge from the Army. However, the applicant’s record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty). The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, paragraph 14-12c, by reason of Misconduct (Serious Offense), with a characterization of service of under other than honorable conditions. The applicant contends, in effect, false allegations of sexual misconduct led to the separation. The applicant spent over a year in jail but was subsequently found innocent of all charges. Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. The applicant had honorable service, including two combat tours. The Board will consider the applicant service accomplishments and the quality of service according to the DODI 1332.28 If the applicant desires a personal appearance hearing, it is the applicant’s responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration because they are not available in the official 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 that the applicant has the following potentially mitigating diagnoses: Adjustment Disorder, PTSD. (2) Did the condition exist, or experience occur during military service? Yes. The applicant held an in-service diagnosis of Adjustment Disorder and is service-connected for PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that child abuse is not a progression or sequela of trauma. The applicant noted depression, but after incarceration and not in-service, although depression would not be mitigating either. (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 conditions did not outweigh the accepted basis for applicant’s separation – child sexual abuse – for the aforementioned reason. b. Response to Contention(s): The applicant contends false allegations of sexual misconduct led to the separation, and the applicant spent over a year in jail but was subsequently found innocent of all charges. The Board considered this contention but was unable to determine its merit due to the absence of information at this time. While the Board considered child-sexual abuse as the accepted basis for separation, the applicant did not provide sufficient evidence like the separation packet for the Board’s consideration. Therefore, with the provided evidence, the Board denied the upgrade request. 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 Adjustment Disorder or PTSD did not excuse or mitigate the offenses of sexual abuse of a child – which the Board used as the accepted basis for separation due to the complete facts and circumstances surrounding the discharge being unknown at this time. 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 Change 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 AR20200005855 1