1. Applicant’s Name: a. Application Date: 1 June 2020 b. Date Received: 9 June 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, battling with PTSD and multiple direct blasts from IEDs were recognized shortly after the applicant returned home from deployments and based on combating hostile forces in Iraq and Afghanistan. The Army recognized the applicant required a Medical Review Board because of the severe condition but failed to follow through by discharging the applicant on an accusation that was thrown out versus treatment for the diagnosed mental health condition. Therefore, the disability condition was not recognized as a potential role to a fair review of the discharge. The applicant further details the contentions in an allied self-authored statement provided with the application. b. Board Type and Decision: In a records review conducted on 21 April 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, Chapter 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 26 August 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 4 March 2019 (2) Basis for Separation: The applicant was informed of the following reasons: Between 22 February 2018 and 22 March 2018, the applicant failed to obey a lawful general regulation by wrongfully engaging in fraternization with a junior enlisted Soldier. On 12 March 2018, the applicant committed an adultery. On 12 March 2018, the applicant engaged in disorderly conduct. Additionally, between 22 February 2018 and 22 March 2018, the applicant maltreated SPC M. R. S., a person subjected to the applicant’s orders, by making unwanted sexual advances. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 12 March 2019 (5) Administrative Separation Board: On 26 June 2019, the administrative separation board convened, and the applicant appeared with counsel. The Board determined the four allegations listed in the notification memorandum were supported by a preponderance of the evidence. The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions. (6) Separation Decision Date / Characterization: 6 August 2019 / Under Other Than Honorable Conditions (On 20 May 2019, the GCMCA, having considered whether the applicant’s case should be processed through medical disability channels, determined the applicant’s medical condition was not a direct or substantial contributing cause of the misconduct and there were no other circumstances warranting continued PEB processing.) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 December 2015 / Indefinite b. Age at Enlistment / Education / GT Score: 29 / some college / 106 c. Highest Grade Achieved / MOS / Total Service: E-6 / 88M10, Motor Transport Operator / 14 years, 3 months, 3 days d. Prior Service / Characterizations: USAR, 9 May 2005 – 23 May 2005 / NA IADT, 24 May 2005 – 16 September 2005 / HD USAR, 17 September 2005 – 20 December 2005 / NIF RA, 21 December 2005 – 8 December 2008 / HD RA, 9 December 2008 – 13 December 2015 / HD e. Overseas Service / Combat Service: Alaska, SWA / Afghanistan (26 September 2011 – 22 September 2012); Iraq (8 October 2008 – 8 October 2009); Kuwait (7 October 2006 - 14 June 2007), (2 December 2017 - 18 August 2018) f. Awards and Decorations: ARCOM-4, AAM-2, MUC-3, USNMUC, AGCM-4, NDSM, GWOTEM, GWOTSM, ACM-2CS, ICM-2CS, NCOPDR-2, ASR, OSR-5, NATOMDL, CAB g. Performance Ratings: 14 October 2015 – 13 October 2016 / Met Standard 14 October 2016- 13 October 2017 / Highly Qualified 14 October 2017 – 1 March 2018 / Highly Qualified 2 March 2018 – 1 March 2019 / Not Qualified h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 12 February 2019, for failing to obey a lawful general regulation by wrongfully engaging in an intimate and sexual relationship with a junior enlisted Soldier between 22 February 2018 and 22 March 2018; wrongfully having sexual intercourse with SPC M. R. S., a person not the spouse on 12 March 2018; being disorderly on 12 March 2018; and maltreated SPC M. R. S., a person subjected to the applicant’s orders, by making unwanted sexual advances between 22 February 2018 and 22 March 2018. The punishment consisted of a reduction to E-5; forfeiture of $1,698 pay per month for two months (suspended); extra duty for 45 days; and a written reprimand. Report of Proceedings by Board of Officers with summarized proceedings, and findings and recommendations, dated 26 September 2019, reflects the administrative separation board found: the four allegations listed in the notification memorandum were supported by preponderance of evidence and warranted the applicant’s separation with an under other than honorable conditions characterization of service. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Veterans Administration Disability rating decision, dated 19 February 2020, reflecting the applicant was rated 70 percent disability for PTSD with major depressive disorder and TBI (also claimed as adjustment mood disorder and anxiety). (2) AMHRR Listed: Report of Medical History, dated 7 May 2019, the applicant noted behavioral health issues and the examining medical physician noted in the comments section: extensive medical history, currently in MEB for adjustment disorder, low back pain, and foot drop, and referred to the applicant’s electronic and medical records. Report of Mental Status Evaluation, dated 10 April 2019, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. The behavioral health diagnoses were an “Adjustment disorder with anxiety and depressed mood.” The examiner commented, the applicant was currently in a medical board process which included a psychiatric diagnosis, and the applicant did not have TBI or PTSD behavioral health condition that served as a mitigating factor in the alleged misconduct. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Kurta Memorandum; VA Rating Decision; self-authored statement; and DD Forms 214 and 214C. 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. 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 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-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 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 Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends to be battling with PTSD and multiple direct blasts from IEDs, which were recognized shortly after returning home from deployments in Iraq and Afghanistan. The applicant’s AMHRR contains documentation which supports a diagnosis of in-service adjustment disorder with anxiety and depressed mood. The record shows the applicant underwent a mental status evaluation (MSE) on 10 April 2019, which indicates the applicant was mentally responsible and was able to recognize right from wrong. The MSE was considered by the separation authority. The Veterans Administration has also granted the applicant 70 percent service connection disability for PTSD with major depressive disorder and TBI (also claimed as adjustment mood disorder and anxiety), and 50 and 40 percent for other medical conditions the applicant suffered while on active duty. The applicant contends although the Army recognized the applicant required a Medical Review Board because of the severe condition, the Army failed to follow through by discharging the applicant on an accusation which was thrown out versus treatment for the diagnosed mental health condition; thus, the disability condition was not recognized as a potential role to a fair review of the discharge. The available medical evidence in the AMHRR indicate the applicant was suffering from a disabling medical or mental condition during the discharge processing, which warranted separation processing through medical channels. The GCMCA, in considering whether the applicant’s case should be processed through medical disability channels, determined the applicant’s medical condition was not a direct or substantial contributing cause of the misconduct and there were no other circumstances warranting continued PEB processing. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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: Adjustment DO; PTSD; Depression, PTSD with major depressive disorder and TBI (also claimed as adjustment mood disorder and anxiety, 70% service-connected). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the diagnoses of Adjustment DO, Depression, TBI and PTSD were made while applicant was on active duty. VA service connection of 70% establishes that the diagnosis of PTSD with major depressive disorder and TBI (also claimed as adjustment mood disorder and anxiety) occurred during service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that there are no mitigating BH conditions. While the applicant has been diagnosed with Adjustment Disorder, PTSD, mild TBI, and Major Depressive DO (MDD), these conditions do not mitigate his offenses of fraternization with a junior enlisted SM, engaging in adultery, engaging in disorderly conduct and maltreating a subordinate SPC by making unwanted sexual advances because these conditions (Adjustment DO, PTSD, MDD and h/o mild TBI) do not affect one’s ability to distinguish right from wrong and act in accordance with the right. Sexually based misconduct is not part of the natural history/sequelae of any of these conditions. (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 outweighed the applicant’s sexual misconduct for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends to be battling with PTSD and multiple direct blasts from IEDs, which were recognized shortly after returning home from deployments in Iraq and Afghanistan. The Board liberally considered this contention, ultimately the Board determined that the available evidence did not support a conclusion that any of the applicant’s medical conditions mitigated the basis for applicant’s separation - fraternization with a junior enlisted SM, engaging in adultery, engaging in disorderly conduct and maltreating a subordinate by making unwanted sexual advances. (2) The applicant contends although the Army recognized the applicant required a Medical Review Board because of the severe condition, the Army failed to follow through by discharging the applicant on an accusation which was thrown out versus treatment for the diagnosed mental health condition; thus, the disability condition was not recognized as a potential role to a fair review of the discharge. The Board considered this contention and determined that the applicant’s Adjustment DO, PTSD and h/o mild TBI does not mitigate the applicant's fraternization, adultery, disorderly conduct, and maltreatment of a subordinate by making unwanted sexual advances, because these conditions (Adjustment DO, PTSD, MDD and h/o mild TBI) do not affect one’s ability to distinguish right from wrong and act in accordance with the right. Sexually based misconduct is not part of the natural history/sequelae of any of these conditions. 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 contentions 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, which included consideration of all conditions and potentially-mitigating experiences listed in paragraph 9a, above; there was no evidence of an impropriety or inequity that might excuse or mitigate the offenses the applicant's fraternization, adultery, disorderly conduct, and maltreatment of a subordinate by making unwanted sexual advances. 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, 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 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 AR20200008081 1