1. Applicant’s Name: a. Application Date: 3 August 2020 b. Date Received: 5 August 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 or general (under honorable conditions). The applicant seeks relief contending, in effect, the accuser of an incident on or about 15 July 2011 was intoxicated and was unsure of who was serving the accuser alcohol, which accuser was provided. The applicant was falsely charged with aggravated sexual assault of adult by force and rape of an adult by force was unfounded. The witness Specialist M__ D. D__ made an incriminating statement that was later found to be a false official statement. The applicant states no DNA evidence was ever found implying the applicant did anything to the accuser. The applicant had deployments to Iraq and Afghanistan and received a Purple Heart for injuries to both legs in Iraq by an improvised explosive device. The applicant cannot receive compensation for the injuries because of the discharge and would like to reestablish eligibility to Veterans Affairs (VA) benefits. b. Board Type and Decision: In a records review conducted on 30 August 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: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 20 April 2012 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): NIF (2) Legal Consultation Date: NIF (3) Basis for Separation: Pursuant to the applicant’s request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: NIF (5) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 November 2008 / 6 years b. Age at Enlistment / Education / GT Score: 29 / High School Graduate / 94 c. Highest Grade Achieved / MOS / Total Service: E-5 / 14S10, Avenger Crewmember / 10 years, 5 months, 7 days d. Prior Service / Characterizations: RA, 14 November 2001 - 11 November 2008 / HD e. Overseas Service / Combat Service: Italy, SWA / Iraq (18 March 2003 - 1 May 2004); Afghanistan (16 March 2005 - 21 February 2006) f. Awards and Decorations: ACM-CS, ICM-2CS, ARCOM-3, PH, AAM-2, JMUA, PUC, AGCM-2, NDSM, GWOTEM, GWOTSM, ASR, OSR-3, CAB g. Performance Ratings: 1 July 2006 - 8 February 2007 / Marginal 9 February 2007 - 31 October 2008 / NIF 1 November 2008 - 31 October 2009 / Fully Capable 1 November 2009 - 8 June 2010 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, 25 January 2007, for willfully disobeying a lawful order on or about 10 January 2007, a unlawful order given by a superior noncommissioned officer to not contact K__ H__, or words to that effect. The punishment consisted of a reduction from E-5 to E-4; forfeiture of $989.00 pay per month for 2 months; and extra duty and restriction for 45 days. General Officer Memorandum of Reprimand, 19 August 2009, reflects on 2 July 2009 the applicant was arrested for driving while impaired. The applicant’s alcohol content tested .24 percent, which was over the legal limit to operate a motor vehicle in the state of North Carolina and on Pope Air Force Base. Military Police Report, 23 July 2011, reflects the applicant was under investigation for aggravated sexual assault of an adult by force, Article 120, UCMJ (Off Post). CID Report of Investigation, 24 January 2012, revealed the applicant was under investigation for aggravated sexual assault of adult by force and rape of an adult by force (unfounded). (Name masked (also known as accuser)) reported the applicant groped accuser while at an unknown apartment. The investigation established probable cause to believe the applicant committed the offense of aggravated sexual assault when the applicant engaged in an unlawful sex act with (name masked). The investigation did not establish probable cause to believe the applicant committed the offense of rape as it did not meet the elements of rape. A DA Form 4833 (Commander Report of Disciplinary or Administrative Action) reflects the applicant was referred on 21 February 2012 for rape of an adult by force and aggravated sexual assault of adult by force for actions on 23 July 2011. The applicant requested a chapter 10, in lieu of trail by court-martial. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: VA disability rating decision, 22 December 2022, reflecting the applicant was previously rated 70 percent disability for post-traumatic stress disorder (PTSD) with alcohol use disorder, which was increased to 100 percent disability for PTSD with alcohol use disorder, mild, in partial remission, and insomnia disorder, effective 2 September 2022. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; Purple Heart Request; three third-party letters; VA Form 21-4138 (Statement in Support of Claim); CID Report of Investigation Memorandum; VA Benefit letter. 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 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 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. (6) Paragraph 10-8a stipulates a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. (See chap 3, sec II.) (7) Paragraph 10b stipulates Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be improper. 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 “KFS” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, In Lieu of Trial by Court-Martial. 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 also 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 or general (under honorable conditions). The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant’s AMHRR is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. The applicant’s AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s electronic signature. The applicant’s DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 10, by reason of In Lieu of Trial by Court-Martial, with a characterization of service of under other than honorable conditions. The applicant contends, in effect, the applicant was falsely charged with aggravated sexual assault of adult by force and rape of an adult by force was unfounded. The applicant provided VA Form 21-4138 (Statement in Support of Claim), 3 August 2020, the applicant states there was no DNA evidence implying the applicant did anything to the accuser. A CID Report of Investigation, 24 January 2012, reflects the investigation established probable cause to believe the applicant committed the offense of aggravated sexual assault when the applicant engaged in an unlawful sex act with (name masked). The investigation did not establish probable cause to believe the applicant committed the offense of rape as it did not meet the elements of rape. The applicant contends, in effect, the witness Specialist D__ made an incriminating statement that was later found to be a false official statement. A CID Report of Investigation, 24 January 2012, reflects Specialist D__ committed the offense of false official statement, however a copy of this statement is unavailable for review by the Board. The Army Review Board Agency provided the Criminal Investigation Division’s reports to the applicant at the address in the application on 20 July 2023 requesting comments but received no response from the applicant. The applicant contends, in effect, a discharge upgrade would allow VA benefits. Eligibility for veteran’s benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of VA for further assistance. The applicant contends, in effect, to have a Purple Heart from injuries incurred due to a combat tour. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The third party statements provided with the application speak highly of the applicant while serving in the Army. Analyst notes the applicant checked the PTSD, TBI, and other mental health boxes on the DD Form 293. The Military Review Boards representative emailed the applicant at the email in the application on 7 July 2023 requesting medical documentation to support PTSD, TBI, and/or a behavioral health condition. On 10 August 2023, the applicant provided a VA disability rating decision, 22 December 2022, reflecting the applicant was rated 100 percent disability for PTSD with alcohol use disorder, mild, in partial remission, and insomnia disorder, effective 2 September 2022 but did not provide evidence to support a TBI. 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 with disturbance of emotions and conduct, PTSD (100% SC). (Note-diagnosis of Adjustment DO is subsumed under the diagnosis of PTSD.) (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found diagnosis of Adjustment DO was made in service; VA service connection for PTSD establishes it occurred and/or began 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 that the applicant has a BH condition, PTSD, which mitigates some of his misconduct. As there is an association between PTSD and self-medication with alcohol, there is a nexus between this diagnosis and his July 2009 DUI arrest. PTSD, however, does not mitigate applicant’s sexually based misconduct as PTSD does not affect one’s ability to tell right from wrong and act in accordance with the right. In the BH Advisor’s opinion, any mitigation provided under liberal consideration for the applicant’s DUI is outweighed by the totality of his misconduct. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the available evidence did not support a conclusion that the applicant’s PTSD outweighed the totality of the applicant’s misconduct- specifically sexually based misconduct- for the aforementioned reason(s). b. Prior Decisions Cited: AR20190011531 c. Response to Contention(s): (1) The applicant contends, in effect, the applicant was falsely charged with aggravated sexual assault of adult by force and rape of an adult by force was unfounded. The Board considered this contention but found there was no corroborating evidence to support the applicant’s assertion. 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. (2) The applicant contends, in effect, the witness Specialist D__ made an incriminating statement that was later found to be a false official statement. The Board considered this contention but found the nature of the applicant’s misconduct was not outweighed (3) The applicant contends, in effect, a discharge upgrade would allow VA benefits. The Board considered this contention and determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. (4) The applicant contends, in effect, to have a Purple Heart from injuries incurred due to a combat tour. The Board considered the applicant’s awards and totality of service but found the applicant’s service does not outweigh the applicant’s sexually based misconduct. d. 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. e. 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 and PTSD did not excuse or mitigate the sexual misconduct offense. 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. Therefore, the applicant’s Under Other Than Honorable Conditions discharge was proper and equitable as the applicant’s conduct fell below that level of satisfactory service warranting a General discharge or meritorious service warranted for an upgrade to Honorable discharge. (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 AR20200008227 1