1. Applicant’s Name: a. Application Date: 10 July 2020 b. Date Received: 24 September 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 did not properly annotate the enclosed application requesting a possible discharge upgrade. The Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28, which stipulates a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant also requests a reentry (RE) code, separation program designator (SPD) code, and a narrative reason change. The applicant seeks relief contending, in effect, the applicant is innocent of the charges for which the applicant was separated for and the case against the applicant was dismissed, and the applicant was never found guilty of a crime. The applicant is seeking veterans benefits and desires to rejoin military service. The applicant has obtained both a bachelor and master’s degree and a real estate license. The applicant is having a hard time finding employment due to being titled an offender and having fingerprints forwarded to crime data basis. b. Board Type and Decision: In a records review conducted on 3 November 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board’s decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 12 March 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 24 September 2015 (2) Basis for Separation: The applicant was informed of the following reasons: On divers’ occasions between on or about 12 June 2013 and on or about 24 July 2014, the applicant committed lewd acts upon a child who had not attained the age of 16. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 20 October 2015 (5) Administrative Separation Board: The applicant voluntarily waived consideration of the case by an admirative separation board contingent upon receiving a characterization of description of separation no less than General. The applicant’s request was denied. On 28 January 2016, an administrative separation board found the allegation of violating UCMJ Article 120b for committing lewd acts upon a child between on or about 12 June 2013 and on or about 24 July 2014, by causing the child to touch a penis with her hand; by touching the child’s genitalia over clothing with a hand; and by communicating indecent language the child was supported by a preponderance of the evidence. The board found the allegation warranted the applicant’s separation. The board recommend the applicant be separated with an under other than honorable conditions characterization of service. (6) Separation Decision Date / Characterization: 1 March 2016 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 December 2012 / 4 years b. Age at Enlistment / Education / GT Score: 44 / HS Graduate / 118 c. Highest Grade Achieved / MOS / Total Service: E-5 / 12N20, Horizontal Construction Specialist / 6 years, 5 months, 11 days d. Prior Service / Characterizations: RA, 2 October 209 – 10 December 2012 / HD e. Overseas Service / Combat Service: Germany, SWA / Afghanistan (5 May 2012 – 23 January 2013) f. Awards and Decorations: ACM-CS, ARCOM, AAM-3, NDSM, GWOTSM, OSR-2 g. Performance Ratings: 1 August 2012 – 18 June 2013 / Fully Capable 19 June 2013 – 18 April 2014 / Fully Capable 19 April 2014 – 18 April 2015 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: CID Report of Investigation-Final, 27 March 2015, reflects an investigation established probable cause to believe the applicant committed the offense of Sexual Abuse of a child when the applicant forced the child to touch the applicant in a sexual manner and the applicant touch the child on a sexual manner on multiple occasions. Memorandum For Record, 8 October 2015, reflects the Commander General, BG C, directed the withdrawal and dismissal without prejudice of the court-martial charge and its specifications against the applicant. The action was taken after considering the follow: the charge and its specifications; the allied documents; correspondence from the victim, her attorney, and her mother, as to the victim’s unwillingness to further participate and testify; the recommendations from the Staff Judge Advocate that the prosecution should not further proceed based on the Government’s inability to try the case in light of the minor victim’s unwillingness to further participate, as her testimony is material and would be required to prove the case beyond a reasonable doubt; and the preservation of the victim’s rights as to any potential prosecution of this matter by the Department of Justice. (page 252 of Separation Packet) i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Mental Status Evaluation (MSE), 1 September 2015, reflects the applicant met medical retention requirements. The applicant was diagnosed with adjustment disorder with mixed anxiety and depressed mood. The applicant had a positive screen for PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, DD Form 214, Memorandum, subject: Dismissal of Charge and Specifications, 2 October 2015, Master’s degree Diploma, Bachelor’s Degree Diploma, Real Estate License, VA Form 21-4138, Memorandum for Record, 1 January 2013, subject: Statement of Wartime Service [Applicant], Letter to Donald Trump 6. POST SERVICE ACCOMPLISHMENTS: The applicant has obtained both a bachelor and master’s degree and a real estate license. 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. 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 did not properly annotate the enclosed application requesting a possible discharge upgrade. The Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28, which stipulates a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant also requests a RE code, SPD code, and narrative reason change. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant requests the narrative reason for the discharge be changed. 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).” The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant requests the SPD and RE codes be changed. Separation codes are three- character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations the SPD code specified by Army Regulations for a discharge under Chapter 14-12c, is “JKQ.” Army Regulation 635-8, Separation Documents, governs the preparation of the DD Form 214 and dictates the entry of the 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 SPD code to be entered under this regulation. 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. The applicant contends, in effect, the applicant is innocent of the charges for which the applicant was separated for and the case against the applicant was dismissed, and the applicant was never found guilty of a crime. The dismissal of charges is a procedural step, which is part of a normal process when an alternative forum is chosen. In this case, a Memorandum For Record, 8 October 2015, reflects the Commander General, BG C, directed the withdrawal and dismissal without prejudice of the court-martial charge and its specifications against the applicant. The action was taken after considering the follow: the charge and its specifications; the allied documents; correspondence from the victim, her attorney, and her mother, as to the victim’s unwillingness to further participate and testify; the recommendations from the Staff Judge Advocate that the prosecution should not further proceed based on the Government’s inability to try the case in light of the minor victim’s unwillingness to further participate, as her testimony is material and would be required to prove the case beyond a reasonable doubt; and the preservation of the victim’s rights as to any potential prosecution of this matter by the Department of Justice. A CID Report of Investigation-Final, 27 March 2015, reflects an investigation established probable cause to believe the applicant committed the offense of Sexual Abuse of a child when the applicant forced the child to touch the applicant in a sexual manner and the applicant touch the child on a sexual manner on multiple occasions. The applicant is seeking veteran’s benefits. Eligibility for veteran’s benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does 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. The applicant desires to rejoin military service. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. An RE Code of “3” indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army’s needs at the time and are required to process waivers of RE codes if appropriate. The applicant states the applicant is having a hard time finding employment due to being titled an offender and having fingerprints forwarded to crime data basis. The Board does not grant relief to gain employment or enhance employment opportunities. The applicant states the applicant has obtained both a bachelor and master’s degree and a real estate license. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. 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 mixed anxiety and depressed mood. Applicant has also self-reported a diagnosis of PTSD. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the diagnosis of Adjustment DO was made while applicant was active duty. (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 in the Army, the applicant was diagnosed with Adjustment DO with anxiety and depressed mood. This condition, however, does not mitigate his sexually based misconduct as this condition does not affect one’s ability to distinguish right from wrong and act in accordance with the right. The VA has diagnosed the applicant with non-service connected MDD and Unspecified Anxiety DO. These conditions, should they be service connected in the future, would also not mitigate his sexually based misconduct for the same reasons as listed above for Adjustment DO, i.e., they do not affect one’s ability to tell right from wrong and act in accordance with the right. Finally, the applicant has self-asserted PTSD. Review of his military and VA medical records indicates that he has not been diagnosed with PTSD or Unspecified Trauma and/or Stressor Disorder. However, as per Liberal Consideration, his self-assertion alone merits consideration by the board. (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 revealed the applicant does not have any mitigating BH conditions that outweighed the basis for applicant’s separation – misconduct of lewd acts upon a child who had not attained the age of 16 – for the aforementioned reason(s). b. Response to Contention(s): The applicant contends the applicant is innocent of the charges for which the applicant was separated for and the case against the applicant was dismissed, and the applicant was never found guilty of a crime. The Board considered this issue and found that the CID Report of Investigation-Final, 27 MAR 2015, reflects an investigation established probable cause to believe the applicant committed the offense of Sexual Abuse of a child when the applicant forced the child to touch the applicant in a sexual manner and the applicant touch the child on a sexual manner on multiple occasions. Later, the Memorandum For Record, 8 OCT 2015, reflects the Commander General, BG C, directed the withdrawal and dismissal without prejudice of the court-martial charge and its specifications against the applicant. The action was taken after considering the follow: the charge and its specifications; the allied documents; correspondence from the victim, her attorney, and her mother, as to the victim’s unwillingness to further participate and testify; the recommendations from the Staff Judge Advocate that the prosecution should not further proceed based on the Government’s inability to try the case in light of the minor victim’s unwillingness to further participate, as her testimony is material and would be required to prove the case beyond a reasonable doubt; and the preservation of the victim’s rights as to any potential prosecution of this matter by the Department of Justice. Based on these facts, the Board determined the discharge is proper and equitable. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the Board found the applicant has no mitigating Behavioral Health conditions. Adjustment DO with mixed anxiety and depressed mood does not mitigate his sexually based misconduct as this condition does not affect one’s ability to distinguish right from wrong and act in accordance with the right. 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, 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 AR20200008868 1