1. Applicant’s Name: a. Application Date: 18 December 2020 b. Date Received: 29 December 2020 c. Counsel: Yes 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests, through counsel, an upgrade to honorable, a reentry (RE) and separation program designator (SPD) code change and the narrative reason changed. The applicant through counsel seeks relief contending, in effect, the applicant was an outstanding Soldier, combat veteran, and was selected to serve as a recruiter. The applicant’s career was cut short by false allegations arising from an investigation into the applicant’s interactions with a recruit. The handling of the case and the receipt of a GOMOR for allegations CID deemed were not supported by creditable evidence forced the applicant to submit a conditional waiver and seek separation due to the complete loss of faith in the integrity and fairness of the administrative process. The applicant was given improper guidance which interfered with a legal right. The applicant’s counsel contends the Army failed to conduct a fair and impartial investigation and it was a material error of discretion to rely on the investigation in deciding to discharge the applicant. The processing of the case was so deficient that it deprived the applicant of critical due process. The applicant’s post-service conduct warrants an upgrade consideration. 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: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 5 December 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The applicant was informed of the following reasons: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 7 April 2006 / 6 years (The applicant extended the enlistment for 45 months on 17 July 2012) b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 112 c. Highest Grade Achieved / MOS / Total Service: E-6 / 13D34, Field Artillery Automated Specialist / 12 years,8 months, 30 days d. Prior Service / Characterizations: ARNG, 26 March 2002 – 1 June 2004 / HD RA, 15 March 2003 – 11 February 2004 / HD (Concurrent Service) (Deployment) RA, 6 August 2002 – 17 December 2002 / HD (Concurrent Service) (IADT) e. Overseas Service / Combat Service: Korea, SWA / Afghanistan (15 March 2003 – 11 February 2004), Iraq (25 October 2007 – 9 January 2009) f. Awards and Decorations: ACM-CS, ARCOM, AAM-3, VUA, AGCM-3, NDSM, GWOTSM, KDSM, ICM-CS-2, NCOPDR, ASR, OSR-3. AFRM-M Device, g. Performance Ratings: 29 April 2014 – 5 December 2014 / Fully Capable 11 February 2014 – 28 April 2014 / Marginal 17 February 2013 – 16 February 2014 / Fully Capable 17 February 2012 – 16 February 2013 / Fully Capable 13 July 2011 – 16 February 2012 / Among The Best 13 July 2010 – 12 July 2011 / Fully Capable 1 February 2010 – 12 July 2010 / Fully Capable 1 February 2009 – 31 January 2010 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: The applicant’s counsel provides a CID Report of Investigation, dated 28 January 2014, which reflects, in part, an investigation established probable cause existed to believe the applicant committed the offense of Sexual Assault, when the applicant pushed Ms. H against a wall and performed sexual acts without consent. The investigation established probable cause did not exist to believe the applicant committed the offense of Abusive Sexual Contact. The applicant’s counsel provides a GOMOR, dated 28 March 2014, which reflects the applicant engaged in an inappropriate, sexual relationship with a 17-year-old subject of recruiting efforts. Additionally, when questioned about the misconduct, the applicant lied and said the conduct was always professional. In October 2012, the applicant communicated with PV1 H in an unprofessional manner when the applicant told her how pretty she was. Lastly, in May 2013, the applicant touched K.J.’s buttocks when demonstrating how she should perform for a BMI test. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Legal Brief with 7 exhibits (119 total pages) 6. POST SERVICE ACCOMPLISHMENTS: The applicant’s counsel provides a resume and transcripts pertaining to the applicant’s post-service accomplishments. 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) 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. (5) 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. (6) 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 requests, through counsel requests, an upgrade to honorable, a reentry (RE) and separation program designator (SPD) code change and the narrative reason changed. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant’s service AMHRR is void of the complete facts and circumstances concerning the events which led to the discharge from the Army. The applicant’s record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty). The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, paragraph 14- 12c, by reason of Misconduct (Serious Offense), with a characterization of service of General, (Under Honorable Conditions). The applicant through counsel requests the applicant’s narrative reason for the discharge be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general (under 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 listed in tables 2-2 or 2-2 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 through counsel requests the applicant’s 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 through counsel contends, in effect, the applicant was an outstanding Soldier, combat veteran, and was selected to serve as a recruiter. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant through counsel contends, in effect. the applicant’s career was cut short by false allegations arising from an investigation into the applicant’s interactions with a recruit. The handling of the case and the receipt of a GOMOR for allegations CID deemed were not supported by creditable evidence and forced the applicant to submit a conditional waiver and seek separation due to the complete loss of faith in the integrity and fairness of the administrative process. The applicant through counsel contends, in effect the Army failed to conduct a fair and impartial investigation and it was a material error of discretion to rely on the investigation in deciding to discharge the applicant. The processing of the case was so deficient that it deprived the applicant of critical due process, and the applicant was given improper guidance which interfered with a legal right. The applicant through counsel contends, in effect, the applicant’s post-service conduct warrants an upgrade consideration. 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. Based on the available evidence of record, the AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. If the applicant desires a personal appearance hearing, it is the applicant’s responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration because they are not available in the official record. 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: Anxiety DO, unspecified (30%SC); PTSD. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that VA medical documentation indicates that both of the applicant's BH conditions, PTSD and Unspecified Anxiety DO began during military 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 PTSD and Anxiety DO, unspecified (30%SC) by the VA, neither of these conditions mitigate his sexually based misconduct nor his lying when questioned as neither one of the conditions affects one’s ability to distinguish right from wrong and act in accordance with the right. (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 or Anxiety Disorder outweighed the basis for applicant’s separation for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant’s counsel contends the applicant was an outstanding Soldier, combat veteran, and was selected to serve as a recruiter. The Board considered the applicant’s 12 years of service, including 2 combat tours in Afghanistan and Iraq and the numerous awards received by the applicant but determined that these factors did not outweigh the applicant’s misconduct. (2) The applicant through counsel contends, in effect, the applicant’s career was cut short by false allegations arising from an investigation into the applicant’s interactions with a recruit. The handling of the case and the receipt of a GOMOR for allegations CID deemed were not supported by creditable evidence and forced the applicant to submit a conditional waiver and seek separation due to the complete loss of faith in the integrity and fairness of the administrative process. The Board considered this contention but found 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. In light of current evidence of record, the Board determined the applicant’s discharge was appropriate. (3) The applicant through counsel contends, in effect, the Army failed to conduct a fair and impartial investigation and it was a material error of discretion to rely on the investigation in deciding to discharge the applicant. The processing of the case was so deficient that it deprived the applicant of critical due process, and the applicant was given improper guidance which interfered with a legal right. The Board considered this contention but found 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. In light of current evidence of record, the Board determined the applicant’s discharge was appropriate. (4) The applicant through counsel contends, in effect, the applicant’s post-service conduct warrants an upgrade consideration. The Board considered this contention and determined that the applicant’s post-service accomplishments do not outweigh the misconduct based on the seriousness of the applicant’s offense. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. Board members discussed the applicant’s and counsel’s contentions, however based on the applicant’s pattern of predatory behavior (outside of the accusation in the CID investigation), the Board concurred the current discharge is appropriate. 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 applicant’s PTSD and Anxiety disorder did not excuse or mitigate the offenses of sexual misconduct. 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 General discharge was proper and equitable as the applicant’s misconduct fell below that level of 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 AR20200010289 1