1. Applicant’s Name: a. Application Date: 15 April 2018 b. Date Received: 12 February 2020 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, through counsel, requests an upgrade to honorable. The applicant seeks relief contending, in effect, the separation board improperly considered allegations of misconduct during the applicant’s period of active duty for operational support (ADOS) service to characterize the applicant’s reserve service. The applicant was on active duty from 26 January 2012 to 4 April 2016. The applicant received a DD Form 214 (Certificate of Release or Discharge from Active Duty), characterizing the applicant’s service as honorable. The administrative separation board improperly considered the conviction / other misconduct which led to a conviction from prior period of service for characterization. The characterization was improper because Army Regulation 135-178, paragraph 2-10b (2) prohibits it. The Board may only cure the defect in the applicant’s discharge by upgrading the characterization of service. b. Board Type and Decision: In a records review conducted on 10 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 / AR 135-178, Paragraph 12 / NIF / NIF / General (Under Honorable Conditions) b. Date of Discharge: 25 April 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF / The Army Military Human Resource Record (AMHRR) is void of the Notification Memorandum. The applicant provided the administrative separation board transcript reflecting the administrative separation board concurred unanimously: On or about 20 August 2012, the applicant did unlawfully twist the wrist of N. B. in violation of Article 128, UCMJ. The applicant was unable to carry a firearm in light of being convicted of a crime involving domestic violence and pursuant to AR 600-20, paragraph 4-22. The applicant was arrested for possession of marijuana with intent to distribute on 13 March 2003. The applicant was, on or about 23 January 2007, found guilty in a German court of possession of marijuana and a driving under the influence (DUI). The applicant did on or about 30 June 2011, utter a false official statement on the applicant’s SF-86 (Questionnaire for National Security Positions), blocks 22b, 22e (1), and 23c. The applicant did, on or about 23 August 2011, utter a false official statement on the applicant’s SF-86, blocks 22b, 22e (1), and 23c. The applicant did on or about 30 June 2011 indicate in the negative on the applicant’s DD Form 1966 (Record of Military Processing – Armed Forces of the United States), block 26. The applicant was on or about 23 January 2007, found guilty in a German court as a result of an arrest in 2003 on the charge of possession of marijuana with the intent to distribute. The applicant would have been ineligible for enlistment IAW AR 601-210, Chapter 4-6a (4) (b) unless the applicant had been granted a waiver for the conviction. On 12 October 2010 USAREC Message 11-014, since rescinded at the time of the applicant’s enlistment, was issued to all Army recruiters stating that waivers for drug convictions were suspended and were not being considered for enlistment in the Army Reserve, thus making it impossible for the applicant to enlist in the Army Reserve. The above findings warrant separation, and the board recommended the applicant be discharged from the USAR because of misconduct with a general, under honorable conditions characterization of service. (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: The applicant provided separation documents reflecting: On 18 July 2016, the applicant was notified to appear before an administrative separation board and advised of rights. On 22 January 2017, the administrative separation board convened, and the applicant appeared with counsel. The board recommended the applicant’s discharge with characterization of service of general (under honorable conditions). On 22 March 2018, the separation authority approved the findings and recommendations of the administrative separation board. (6) Separation Decision Date / Characterization: 22 March 2018 / General (Under Honorable Conditions) / The separation authority reviewed the administrative separation action and the medical disability action pertaining to the applicant. After careful consideration of all matters, the separation authority approved the recommendations of the administrative separation board. The separation authority determined the medical condition was not a direct or substantial contributing cause of the conduct which led to the recommendation for separation and the case did not warrant disability processing. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 June 2011 / 6 years / The AMHRR is void of any enlistment contract retaining the applicant in the USAR after the initial enlistment period. b. Age at Enlistment / Education / GT Score: 30 / Bachelor’s Degree / 94 c. Highest Grade Achieved / MOS / Total Service: E-4 / 42A10, Human Resources Specialist / 6 years, 9 months, 27 days d. Prior Service / Characterizations: Navy, 17 April 2001 – 25 April 2001 / NIF USAR, 30 June 2011 – 22 August 2011 / NA IADT, 23 August 2011 – 25 January 2012 / HD (Concurrent Service) AD, 26 January 2012 – 4 April 2016 / HD (Concurrent Service) e. Overseas Service / Combat Service: Germany / None f. Awards and Decorations: AFRM, NDSM, GWOTSM, ASR, OSR, ARCOTR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: DD Form 4 (Enlistment / Reenlistment Document), dated 30 June 2011, states “subject to separation during or at the end of [the applicant’s] enlistment, if [the applicant’s behavior fails to meet acceptable military standards, [the applicant] may be discharged and given a certificate for less than honorable service.” The contract was endorsed by the applicant. DD Form 1966 (Record of Military Processing – Armed Forces of the United States), dated 30 June 2011, reflects the applicant marked “NO” to drug use and abuse. Report of Result of Trial reflects the applicant was tried in a general court-martial on 25 February 2013. The applicant was charged with seven specifications. The summary of offenses, pleas, and findings: Charge I: Violation of Article 120, Rape and Sexual Assault Generally: Specification 1: On 21 August 2012, commit a sexual act upon N. B., to wit: penetrating N. B.’s vulva with the finger, by unlawful force. Plea: Not Guilty. Finding: Guilty. Specification 2: On 21 August 2012, commit a sexual act upon N. B., to wit: penetrating N. B.’s anus with the finger, by unlawful force. Plea: Not Guilty. Finding: Guilty. Specification 3: On 21 August 2012, commit a sexual act upon N. B., to wit: penetrating N. B.’s vulva with the penis, by unlawful force. Plea: Not Guilty. Finding: Guilty. Specification 4: On 21 August 2012, commit a sexual act upon N. B., to wit: penetrating N. B’s anus with the finger, by unlawful force. Plea: Not Guilty. Finding: Not Guilty. Charge II: Violation of Article 128, Assault: Specification 1: On 21 August 2012 unlawfully insert the fingers into the mouth of N. B. Plea. Not Guilty. Finding. Not Guilty. Specification 2: On 21 August 2012 unlawfully strike N. B. in the face with the hands. Plea. Not Guilty. Finding. Not Guilty. Specification 3: On 21 August 2012 unlawfully twist the wrist of N. B. Plea. Not Guilty. Finding. Guilty. Sentence: Reduction to E-1; forfeiture of all pay and allowances; confinement for two years; and a dishonorable discharge. Two Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY),” to “Confined by Military Authorities (CMA),” effective date 26 February 2013; and From “Confined by Civil Authorities (CCA),” to “Present for Duty (PDY),” effective date 27 August 2014. Department of Defense Report of Result of Trial reflects a rehearing was conducted on 11 February 2016 of the general court-martial proceedings conducted on 25 February 2013. The three specifications of Article 120, UCMJ, in which the applicant was found guilty, were dismissed by the GCMCA. The other findings remained the same as the previous general court- martial, resulting in the applicant being convicted of one specification of assault. The sentence adjudged was reduction to E-1 and a reprimand. The applicant was credited with 548 days pretrial credit. Staff Judge Advocate (SJA) Recommendation, dated 22 March 2016, reflects: The applicant was convicted by a general court-martial, contrary to the applicant’s pleas, of three specifications of rape and one specification of assault consummated by battery in violation of Article 120 and 128, Uniform Code of Military Justice (UCMJ). The applicant was sentenced to be discharged with a dishonorable discharge, confinement for two years, forfeiture of all pay and allowances, and reduction to E-1. On 6 August 2015, the U.S. Army Court of Criminal Appeals (ACCA) affirmed the finding of guilty of the assault; set aside the findings of guilty of the three specifications of rape and the sentence; and authorized a rehearing as to those findings set aside and the sentence. On 13 November 2015, the general court-martial convening authority dismissed, without prejudice, the three specifications of rape and referred the assault specification to a general court-martial for a sentence rehearing only. On 11 February 2016, the rehearing was conducted. The applicant sentenced as reflected on the enclosed Report of Result of Trial and credited with 548 days of presentence credit toward any post-trial confinement. Developmental Counseling Form, dated 18 November 2016, being recommended for a Bar to Reenlistment. The U.S. Army Reserve Bar to Reenlistment Certificate, dated 6 January 2017, reflects the applicant was barred from reenlistment because the applicant was convicted by court-martial for assault and was subject to the Lautenberg Amendment prohibiting the applicant from having possession of firearms. The applicant refused to sign the bar certificate. The administrative separation board script, described in previous paragraph 3c (2), reflects the applicant’s commander was questioned by the applicant’s counsel regarding whether the commander was aware the applicant was recommended for a medical evaluation board. The commander indicated learning the applicant had glaucoma a day before the hearing. i. Lost Time / Mode of Return: None / CMA for 548 days, 26 February 2013 to 27 August 2014. This period is not annotated on the DD Form 214, block 29, because the GCMCA rehearing credited the 548 days back to the applicant. j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; attorney memorandum; separation approval memorandum; administrative separation board script. 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) 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. a. Army Regulation 135-178 prescribes 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 of the United States (ARNGUS) and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. (1) Paragraph 2-9a prescribes an honorable characterization 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. (2) Paragraph 2-9b, prescribes, if a Soldier’s service has been honest and faithful, it is appropriate to characterize that service as general (under honorable conditions). Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the Soldier’s conduct or performance of duty outweigh positive aspects of the Soldier’s military record. (3) Chapter 11 (previously Chapter 12) 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, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (4) Paragraph 11-1c, prescribes for the separation for the commission of a serious military or civilian offense if the specific circumstances of the offense warrant discharge and a punitive discharge would be authorized for the same or a closely related offense under the UCMJ. (5) Paragraph 11-8 states an under other than honorable conditions discharge is normally considered appropriate; however, a general (under honorable conditions) or an honorable discharge may be 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), the issues and documents submitted with the application were carefully reviewed. The applicant contends the administrative separation board improperly considered the applicant’s prior period of service for the purpose of characterizing the applicant’s Reserve service. The applicant provided administrative board separation documents reflecting the board considered the applicant’s misconduct while on active-duty status and non-active-duty status, including fraudulent enlistment activity. Army Regulation 135-178, provides: Characterization will be determined solely by the Soldier’s military record during the current enlistment or period of service to which the separation pertain. Prior service activities will not be considered on the issue of characterization. The AMHRR reflects the applicant enlisted on 30 June 2011, in the USAR for 6 years, with an 8-year military service obligation. The AMHRR is void of any enlistment contract retaining the applicant in the USAR after the initial enlistment period. Criminal history information from personnel security investigative reports requested within the first 90 days of a Soldier’s initial enlistment may be used to support separation proceedings initiated under chapter 7. Use of personnel security investigative reports in connection with all other separation proceedings is prohibited unless specific authorization is granted in accordance with Army Regulation 380–67. Pre-service activities, except in proceedings for fraudulent enlistment, paragraph 7–4, will not be considered for the character of service. The applicant contends good service. The Board will consider the applicant’s 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? No. The Board’s Medical Advisor reviewed DoD and VA medical records and found no mitigating BH diagnoses on the applicant. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused, or mitigated the 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 Contention(s): (1) The applicant, through counsel, requests an upgrade to honorable and good service. The Board considered this contention and determined that a change to the applicant’s characterization of service is not warranted because there were no behavioral health mitigating factors for the Board to consider and the applicant’s file is void of the Notification Memorandum. The Board also considered the applicant’s six years of service, applicant’s statement, and DOD guidance for liberal consideration, but these factors did not outweigh the serious misconduct of unlawfully twisting the wrist of N. B., and fraudulent enlistment by answering questions on the applicant’s SF86 untruthfully to warrant an upgrade to honorable. Thus, the applicant was properly and equitably discharged. (2) The applicant contends the administrative separation (ADSEP) board improperly considered the applicant’s prior period of service for the purpose of characterizing the applicants Reserve service. The Board considered this contention and determined that Army Regulation 135-178, paragraph 2-10 provides characterization will be determined solely by the Soldier’s military record during the current enlistment or period of service to which the separation pertain. Per Army Regulation 135-178, paragraph 2-10b(1) the ADSEP Board was within guidelines to consider the “prior service” referenced by the applicant as the applicant was mobilized during the current enlistment time period. The separation action by the ADSEP ended the applicant’s then- current enlistment period. Thus, the applicant’s conduct during mobilization can be considered for characterization purposes. 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 ADSEP Board properly considered the applicant’s misconduct (assault of spouse) which occurred while the applicant was on ADOS because the applicant’s misconduct occurred during the applicant’s “current enlistment” (Reserve Component (RC)) even though the applicant’s misconduct occurred during a period of Active Duty that ran concurrent with the applicant’s RC enlistment. Further, the applicant’s misconduct was properly considered for characterization of service because the applicant made false statements on the applicant’s SF 86 (no arrests, no DUI, no possession of drugs) at the time of the applicant’s RC enlistment, which stated above, is the exception to Army policy because this misconduct, if known, would have affected the applicant’s eligibility for enlistment. The discharge was consistent with the procedural and substantive requirements of the regulations, 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 AR20200005994 1