1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is bad conduct. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the discharge was inequitable because it was based on an isolate incident. The applicant had served for over 13 years with no disciplinary action, held the rank of E-6, and was under consideration for an E-7 promotion. At the time, the applicant was going through some stressful times and the marriage with the spouse was not doing well. The applicant was struggling with trying to balance work and home and being a true Soldier. The applicant had a mental issue but was too ashamed to request for help, and instead became lost mentally. The applicant recognizes and regrets the mistakes, has learned from them, and has grown into a better person as a result. The applicant has since lost loved ones, suffers from health issues resulting from the military experiences, and is unable to afford health insurance. The applicant further details the contentions in two allied self-authored statements provided with the application. b. Board Type and Decision: In a records review conducted on 5 September 2023, and by a 3-2 vote, the Board, after carefully examining the applicant's record of service during the period of enlistment under review and all other evidence presented, determined that clemency is warranted based on length of time since the discharge, the applicant's length and quality of service, the applicant's acceptance of responsibility for his actions, and compassion for his significant health issues and financial hardship that could be remedied with access to VA health services. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to General, Under Honorable Conditions. 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: Court-Martial (Other) / AR 635-200, Chapter 3 / JJD / RE-4 / Bad Conduct b. Date of Discharge: 18 February 2005 c. Separation Facts: The applicant's Army Military Human Resource Record (AMHRR) is void of the case separation file. However, the applicant provided several documents which are described below in 3c(1) through (4). (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 2, 7 January 2002, on 27 June 2001, the applicant was found guilty of the following: Charge I. Violation of Article 92, UCMJ, the applicant violated a lawful general regulation, to wit: CASCOM&FL Reg 600-27, paragraph 4(d), 18 May 1998, by wrongfully: Specification 1: having sexual intercourse with PV2 A. M. F., an IET trainee, between 20 and 30 November 2000. Specification 2: kissing on the breasts and having sexual intercourse with PV2 E. R. S., an IET trainee, between 15 and 19 January 2001. Specification 3: kissing on the neck, touching the genital area, and performing cunnilingus, on PV2 S. M. L., an IET trainee, between 24 January and 1 February 2001. Specification 4: consuming alcohol with PV2 S. M. L. and PV2 S. N. S., IET trainees, between 24 January and 1 February 2001. Charge II. Violation of Article 134, UCMJ, by wrongfully committing adultery with: Specification 1: PV2 A. M. F., a person not the spouse, between 20 and 30 November 2000. Specification 2: PV2 E. R. S., a person not the spouse between 15 and 19 January 2001. (2) Adjudged Sentence: Reduction to E-1; forfeiture of $695 pay per month for two months; to be confined for two months, and to be discharged from the service with a Bad Conduct discharge. (3) Date / Sentence Approved: 7 January 2002 / The sentence was approved and, except for the part of the sentence extending to a bad conduct discharge, would be executed. (4) Appellate Reviews: The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review. The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. (5) Date Sentence of BCD Ordered Executed: 3 December 2004 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 November 1999 / Indefinite b. Age at Enlistment / Education / GT Score: 34 / High School Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-6 / 92A30, Automated Logistical Specialist / 18 years, 28 days d. Prior Service / Characterizations: RA, 2 December 1986 - 12 September 1991 / HD RA, 13 September 1991 - 12 October 1994 / HD RA, 13 October 1994 - 25 June 1997 / HD RA, 26 June 1997 - 29 November 1999 / HD e. Overseas Service / Combat Service: Korea, Alaska / None / The applicant's AMHRR reflects assignments in Korea and Alaska; however, they are not reflected on the DD Form 214. f. Awards and Decorations: NDSM, ASR / The applicant's AMHRR reflects awards of ARCOM, AAM and AGCM-4; however, the awards are not reflected on the DD Form 214. g. Performance Ratings: July 1999 - January 2000 / Among the Best February 2000 - January 2001 / Among the Best h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c (provided by the applicant). Special Court-Martial Order 230, 3 December 2004, described at previous paragraph 3c(4)-(5), reflects the final affirmation of the court-martial sentence and ordered to execute the bad conduct discharge. i. Lost Time / Mode of Return: 49 days: CMA, 27 June 2001 - 14 August 2001 / Released from Confinement j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 149; two self-authored statements; DD Form 214; SPCM Order No. 230; SPCM Order No. 2; four NCOERs; and reenlistment contract. 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. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization. (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) Paragraph 3-11 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing SJA. 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 "JJD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 3, Court-Martial (other). 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. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant's Army Military Human Resource Record (AMHRR) and the applicant's evidence indicate the applicant was adjudged guilty by a court-martial and the sentence was approved by the convening authority. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is empowered to change the discharge only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. The applicant contends the discharge was inequitable because it was based on an isolate incident. Army Regulation 635-200, paragraph 3-5, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends good service and having served for over 13 years with no disciplinary action, held the rank of E-6, and was under consideration for an E-7 promotion. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends family issues and struggling with trying to balance work and home, and being a true Soldier, affected behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends having mental issues but was too ashamed to request for help, and instead became lost mentally. The applicant did not submit any evidence, other than the applicant's statement, to support the contention the discharge resulted from any medical condition. The applicant's AMHRR contains no documentation of any behavioral health diagnosis. The ARBA sent a letter to the applicant at the address in the application on 2 August 2021, requesting documentation to support a behavioral health diagnosis but received no response from the applicant. The applicant contends suffering from health issues and being unable to afford health insurance. Eligibility for veterans' benefits 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. 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: none other than assertion. The applicant asserts mental health issues/depression, which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist or experience occur during military service? 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: none other than assertion. The applicant asserts mental health issues/depression, which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the only evidence of a potentially mitigating psychiatric condition is associated with applicant's assertion of mental health issues including depression. It is the advisor's conclusion that the assertion alone does not provide evidence to support mitigation for any of the various specifications and findings associated with the applicant's bad conduct discharge, which include multiple instances of inappropriate sexual behavior with initial entry trainees, wrongful alcohol use with trainees, and adultery. Even if present, depression does not typically impair one's ability to differentiate right from wrong and adhere to the right and there is no nexus between depression and any of the noted 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 asserted depression outweighed the basis for applicant's separation: multiple instances of inappropriate sexual behavior with initial entry trainees, wrongful alcohol use with trainees, and adultery. b. Response to Contention(s): (1) The applicant contends having mental issues but was too ashamed to request for help, and instead became lost mentally. The Board liberally considered this contention but determined that the available evidence did not support a conclusion that the applicant's asserted depression outweighed the basis for applicant's separation: multiple instances of inappropriate sexual behavior with initial entry trainees, wrongful alcohol use with trainees, and adultery. (2) The applicant contends good service and having served for over 13 years with no disciplinary action, held the rank of E-6, and was under consideration for an E-7 promotion. The Board considered this contention and determined that partial relief is warranted based length of time since the discharge, the applicant's length and quality of service, the applicant's acceptance of responsibility for his actions, and compassion for his significant health issues and financial hardship that could be remedied with access to VA health services. Therefore, the Board voted to upgrade the characterization of service to General. (3) The applicant contends the discharge was inequitable because it was based on an isolated incident. The Board found that the available evidence showed the applicant's misconduct was not isolated. Therefore, further upgrade from General characterization is not warranted. (4) The applicant contends family issues and struggling with trying to balance work and home, and being a true Soldier, affected behavior and ultimately caused the discharge. The considered this contention but found an upgrade to Honorable not supported by the evidence of record. The Honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of accept conduct and performance of duty or is otherwise meritorious that any other characterization would be clearly inappropriate. The Board found that the applicant's service, given the nature of the misconduct, including an inappropriate sexual relationship with Trainees x3 and adultery, was not sufficiently meritorious to warrant an honorable discharge. (5) The applicant contends suffering from health issues and being unable to afford health insurance. 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. c. The Board, after carefully examining the applicant's record of service during the period of enlistment under review and all other evidence presented, determined that clemency is warranted based on length of time since the discharge, the applicant's length and quality of service, the applicant's acceptance of responsibility for his actions, and compassion for his significant health issues and financial hardship that could be remedied with access to VA health services. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to General, Under Honorable Conditions d. Rationale for Decision: (1) The Board, after carefully examining the applicant's record of service during the period of enlistment under review and all other evidence presented, determined that clemency is warranted based on length of time since the discharge, the applicant's length and quality of service, the applicant's acceptance of responsibility for his actions, and compassion for his significant health issues and financial hardship that could be remedied with access to VA health services. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to General, Under Honorable Conditions. (2) The Board voted to change the reason for discharge to Misconduct (Serious Offense) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKQ. (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: Yes b. Change Characterization to: General, Under Honorable Conditions c. Change Reason / SPD code to: JKQ 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 AR20210001583 1