1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 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 general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, being diagnosed with PTSD on 16 August 2013, from serving as a member of the cleanup crew at the Pentagon. The applicant states suffering from PTSD since the 9/11 attack, and it has directly affected everything before and during the discharge proceedings. The applicant contends there is no record of the applicant being engaged in a war or combat zone. The applicant further states receiving a wartime medal when the 9/11 attacks were designated as combat. b. Board Type and Decision: In a records review conducted on 20 September 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 / AR 635-200, Chapter 14- 12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 17 May 2002 c. Separation Facts: (1) Date of Notification of Intent to Separate: 8 April 2002 (2) Basis for Separation: The applicant was informed of the following reasons: the applicant committed the offense of carnal knowledge with, and on occasions committed indecent acts with a female under the age of 16 years old. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 16 April 2002 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 17 April 2002 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 May 2000 / 4 years, 17 weeks b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / 105 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B1P, Infantryman / 2 years, 7 months, 26 days d. Prior Service / Characterizations: USAR, 13 September 1999 – 21 May 2000 / NA e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: General Court-Martial Order Number 4, 8 March 2002 reflects the applicant was charge with: Charge I, Article 120 Plea: Guilty, Finding Guilty. Specification 1: At or near Orono, Minnesota, on or about 23 August 2001, commit the offense of carnal knowledge with B, a minor under 16 years of age. Plea: Guilty. Finding: Guilty. Specification 2: At or near Orono, Minnesota, on or about 25 August 2001, commit the offense of carnal knowledge with B, a minor under 16 years of age. Plea: Guilty. Finding: Guilty. Charge II, Article 134 Plea: Guilty, Finding Guilty, Specification: Between on or about 21 August 2001 and on or about 25 August 2001, on divers’ occasions, commit indecent acts with B, a minor under 16 years of age, not the spouse of the accused, by fondling with intent to arouse, appeal to and gratify the sexual desires of the accused and the said B. Plea: Not Guilty. Finding: Not Guilty. Sentence adjudged on 27 November 2001: To be reduced to the grade of Private (E1); to forfeit $400 pay per month for one month; and to be confined for 30 days. i. Lost Time / Mode of Return: CMA for 30 days, (NIF). This period is not annotated on the DD Form 214 block 29. j. Behavioral Health Condition(s): (1) Applicant provided: VA Medical Progress Notes, printed on 20 February 2015, reflect a diagnosis of PTSD and Personality Disorder NOS. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; Orders, 18 September 2007; medical records. 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) 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 prescribes 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-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 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 contends the narrative reason for the discharge needs 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, at the time, for a discharge under this paragraph was “Misconduct,” 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 contends suffering from PTSD. The applicant provided VA Medical Progress Notes, printed on 20 February 2015, which reflect a diagnosis of PTSD and Personality Disorder NOS. The AMHRR is void of a mental status report. The applicant contends there is no record of the applicant being engaged in a war or combat zone, as the Pentagon service was during 9/11. The applicant further states receiving a wartime medal when the 9/11 attacks were designated as combat. The applicant’s issue does not fall within this board’s purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans’ Service Organization. 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: Post-Traumatic Stress Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant is diagnosed and service connected by the VA for Post-Traumatic Stress Disorder. Service connection establishes that the applicant's Post- Traumatic Stress Disorder existed during military service. (3) Does the condition or experience excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the applicant is diagnosed and service connected by the VA for Post-Traumatic Stress Disorder. However, there is no natural sequela between Post-Traumatic Stress Disorder and perpetrating sexual offenses with a minor since Post-Traumatic Stress Disorder does not interfere with the ability to distinguish between right and 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’s opine, the Board determined that the available evidence did not support a conclusion that the applicant’s Post- Traumatic Stress Disorder outweighed the basis for applicant’s separation for sexual offenses with a minor for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changing. The Board considered this contention and determined that the applicant’s Post-Traumatic Stress Disorder does not outweigh the applicant’s misconduct of sexual offenses with a minor. Post- Traumatic Stress Disorder does not interfere with the ability to distinguish between right and wrong and act in accordance with the right. (2) The applicant contends suffering from PTSD. The Board considered this contention and determined that the applicant’s Post-Traumatic Stress Disorder does not outweigh the applicant’s misconduct of sexual offenses with a minor. Post-Traumatic Stress Disorder does not interfere with the ability to distinguish between right and wrong and act in accordance with the right. (3) The applicant contends there is no record of the applicant being engaged in a war or combat zone, as his Pentagon service was during 9/11. The applicant further states receiving a wartime medal when the 9/11 attacks were designated as combat. The Board recommends the applicant consider addressing this topic with the Army Board of Correction of Military Records (ABCMR). The ABCMR reviews requests for correction/removal of administrative errors or injustices in Army military records. c. The Board denied the applicant’s request upon finding the separation was both proper and equitable. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support 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 to the evidentiary record, the applicant’s Post-Traumatic Stress Disorder does not excuse or mitigate sexual offenses with a minor. The Board considered the applicant's contention regarding suffering from Post-Traumatic Stress Disorder and found that the misconduct and totality of the evidentiary record does not warrant an upgrade. 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 Honorable characterization. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, and the reason the applicant was discharged is 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 AR20210001596 1