1. Applicant’s Name: a. Application Date: 9 May 2020 b. Date Received: 16 June 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 under other than honorable conditions. The applicant through legal counsel requests an upgrade to honorable, a narrative reason change, change to the separation code, and to the reentry eligibility (RE) code. The applicant seeks relief contending, in effect, an upgrade of the discharge would allow for the moving on in life. The applicant requests the Board to correct the injustices made at the time of discharge of issuing an under other than honorable characterization of service. The applicant contends of having just completed the first term of service and was looking forward to a career with the military. Considering the weak evidence presented at the time of discharge and the likelihood that the applicant’s DNA was transferred to Ms. H indirectly, the applicant respectfully requests the Board to upgrade the discharge for opportunity of moving on in life. b. Board Type and Decision: In a records review conducted on 07 June 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-4 / Under Other Than Honorable Conditions b. Date of Discharge: 28 February 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 8 January 2019 (2) Basis for Separation: The applicant was informed of the following reasons: for between on or about 23 September 2017 and 24 September 2017, directly touching the genitals of Ms. S.H., by causing bodily harm to her, to wit: touching her genitalia directly with an intent to gratify his desire without her consent; and On or about 25 September 2017, with intent to deceive, made to Special Agent T.B., an official statement, to wit: “No,” when asked “Did you put your hands down her pants at any point?”, which statement was totally false and was then known by the applicant to be so false. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: On 23 January 2019, the applicant requested consideration of his case by an administrative separation board, personal appearance before the board, and the opportunity to consult with and be represented by counsel. On 30 January 2019, the separation authority referred the applicant’s case to an administrative separation board. On 31 January 2019, the board president, notified the applicant to appear before the appointed board on 15 February 2019 for a hearing to determine whether he should be discharged for commission of a serious offense. The applicant acknowledged notification of the board hearing on 31 January 2019. (5) Administrative Separation Board: The board convened on 20 February 2019 and again on 21 February 2019 to accommodate a witness. The applicant appeared before the board represented by counsel. After deliberation, the board found by a preponderance of the evidence the applicant did directly touch the genitalia of Ms. H, with an intent to gratify his sexual desire, without her consent, causing bodily harm to her and the applicant did knowingly make a false official statement to Special Agent B. with intent to deceive. The board found these offenses did warrant separation. The board recommended the applicant be separated from active service with a discharge characterization of under other than honorable conditions. (6) Separation Decision Date / Characterization: On 26 February 2019, the separation authority having reviewed the applicant’s separation request under the provision of AR 635-200, Chapter 14-12c, Commission of a Serious Offense, and the unconditional waiver for an administrative separation board directed the applicant be discharged with a characterization of service of Under Other Than Honorable Conditions and to be reduced to the lowest enlisted grade. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 October 2015 / 3 years, 21 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 95 c. Highest Grade Achieved / MOS / Total Service: E-4 / 19D10, Cavalry Scout / 3 years, 4 months, 26 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Law Enforcement Report, dated 6 June 2018, indicates the applicant was the subject of investigation for Sexual Assault and Abusive Sexual Contact. Memorandum for Record, dated 13 March 2019, “Comments Regarding Administrative Separation Proceedings of the applicant.” i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): None (1) Applicant provided: (2) AMHRR Listed: 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; legal brief; Law Enforcement Report, dated 6 June 2018; Administrative Board Proceedings (Summarized Transcript); and memorandum for record, dated 13 March 2019, subject “Comments Regarding Administrative Separation Proceedings of the applicant. 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. 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 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-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. 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 through legal counsel requests an upgrade to honorable, a narrative reason change, a change to the separation code, and a change to the reentry eligibility (RE) code. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. Evidence in the AMHRR indicates separation action was initiated against the applicant for between on or about 23 September 2017 and 24 September 2017, directly touching the genitals of Ms. S.H., by causing bodily harm to her, to wit: touching her genitalia directly with an intent to gratify his desire without her consent; and on about 25 September 2017, with intent to deceive, made to Special Agent T.B., an official statement, to wit: “No,” when asked “Did you put your hands down her pants at any point?”, which statement was totally false and was then known by the applicant to be so false. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635- 200 with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Misconduct (Serious Offense),” and the separation code is “JKQ.” Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214, and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant seeks relief contending having just completed the first term of service and looking forward to a career with the military; the weak evidence presented at the time of discharge and the likelihood that the applicant’s DNA was transferred to Ms. H indirectly, the applicant respectfully requests the Board to upgrade the discharge for opportunity of moving on in life. The applicant contentions were noted; evidence in the record (Law Enforcement Report documents) indicate the applicant committed offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant’s incidents of misconduct adversely affected the quality of service, brought discredit on the Army, and were prejudicial to good order and discipline. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged. 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, a voting member, 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 a 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 legal counsel requests an upgrade to honorable, a narrative reason change, change to the separation code, and to the reentry eligibility (RE) code. The Board determined that there was insufficient evidence to support an upgrade to the characterization of service, narrative reason change and separation code because the applicant’s discharge was appropriate. 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 committing serious offenses - sexual assault, Abusive Sexual Contact and deceiving a special agent. The applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (2) The applicant seeks relief contending having just completed the first term of service and looking forward to a career with the military; the weak evidence presented at the time of discharge and the likelihood that the applicant’s DNA was transferred to Ms. H indirectly, the applicant respectfully requests the Board to upgrade the discharge for opportunity of moving on in life. The Board considered this contention non-persuasive during its deliberations as the applicant was separated for serious offense - sexual assault, Abusive Sexual Contact and deceiving a special agent. The applicant is not service connected for any BH condition and did not provide evidence of any arbitrary or capricious action taken by command during separation proceedings. Ultimately the Board found that the applicant’s assertion alone does not outweigh the basis for separation. 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 there were no mitigating factors for the Board to consider. Since the applicant was discharged for Misconduct (Serious Offenses - sexual assault, Abusive Sexual Contact and deceiving a special agent). The current Under Other Than Honorable Conditions characterization of service is proper and equitable. 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 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 AR20200008360 1