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 under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, coping with the punishment has been difficult and finding work has been hard. The applicant states having three children to care for and it is not easy to find work with the current discharge. The applicant is unable to work anywhere within a 100 mile radius of where the applicant lives because all jobs involve military bases, either as construction or contracting. The applicant is unable to provide an adequate future for the children and wants to be a contributing person to society and give the children the life they deserve. The applicant is enrolled in college and is unable to get a decent job to pay for the children and is unable to get medical care for service-related injuries. The applicant has owned up to and paid for their mistake. b. Board Type and Decision: In a records review conducted on 29 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, Chapter 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 3 April 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 9 March 2015 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 3 August 2013 and on or about 6 November 2013, the applicant wrongfully committed a sexual act upon a child who had attained the age of 12 years but had not attained the age of 16 years, by penetrating the private area with the applicant’s private part. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 11 March 2015 (5) Administrative Separation Board: On 11 March 2015, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 26 March 2015 / Under Other Than Honorable Conditions / The Separation Authority carefully considered the Soldier’s mental conditions, service record, and acts of misconduct. Reviewed the completed behavioral health evaluation to determine where the conditions constituted matters in extenuation which related to the action which is basis for this separation. Having considered these matters, the Separation Authority found the Soldier’s conditions were not a direct or substantial contributing cause of the conduct which led to the recommendation for administrative elimination. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 7 May 2013 / 6 years b. Age at Enlistment / Education / GT Score: 19 / High School Graduate / 106 c. Highest Grade Achieved / MOS / Total Service: E-3 / 15R10, AH-64 Attack Helicopter Repairer / 1 year, 10 months, 3 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (21 January 2014 – 20 April 2014) f. Awards and Decorations: ACM-CS, NDSM, GWOTSM, ASR, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Walton County Sheriff’s Office, Offense Report, 19 June 2014, reflects F. P., gave a verbal and written statement about the possible lewd and lascivious act. F. P. stated they had been sexually active while F. P. was 15 years old, and the applicant was 20 years old. F. P. is currently pregnant with a child conceived with the applicant. All sexual acts were consensual. F. P.’s parent were aware of the relationship, but stated it was not supposed to be physical. Agent’s Investigation Report, 0360-14-CID033-70911-6E4B,10 July 2014, reflects the applicant waived their rights and provided a video/audio recorded interview wherein the applicant admitted to engaging in sexual acts with F. P., despite knowing the age. Additionally, the applicant admitted knowing it was illegal and wrong when the applicant engaged in sexual acts with F. P. Offer to Plead Guilty, 15 December 2014, reflects after consulting with counsel and being fully advised, the applicant had a legal and moral right to plead not guilty and to place the burden of providing guilty beyond a reasonable doubt upon the prosecution, the applicant offered: to plead Guilty to Specification 1 and Specification 2 of the Charge. Two Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY),” to “Confined by Civilian Authorities (CCA)” effective 3 February 2015; and, From “CCA” to “PDY,” effective 27 February 2015. Record of Trial by Summary Court-Martial, 3 February 2015, reflects the applicant was found guilty of the following charges: The Charge: Violation of Article 120b, UCMJ: Specification I: On or about 3 August 2013, the applicant committed a sexual act upon F. P. a child who had attained the age of 12 years but had not attained the age of 16 years. Specification 2: On or about 6 November 2013, the applicant committed a sexual act upon F. P. a child who had attained the age of 12 years but had not attained the age of 16 years. The punishment consisted of confinement for 30 days and reduction to Private E-1. i. Lost Time / Mode of Return: 23 days (CCA, 3 February 2015 – 26 February 2015) j. Behavioral Health Condition(s): (1) Applicant provided: Medical Record, 21 April 2015, reflects the following active problems: Attention-Deficit Hyperactivity Disorder; Attention-Deficit Hyperactivity Disorder; PTSD; Anxiety; Insomnia; Major Depression, Recurrent; Major Depression, Single Episode; Chronic Major Depression; and Psychiatric Disorder requiring hospitalization. (2) AMHRR Listed: Report of Mental Status Evaluation, 6 January 2015, reflects the applicant was unfit for duty due to a serious mental condition which is not likely to resolve within one year. The applicant could understand and participate in administrative proceedings. The applicant was diagnosed with: Axis I: PTSD, ADHD. It was noted: SM has been diagnosed with Post Traumatic Stress Disorder and Attention Deficit Disorder; however, these conditions have not been determined to be unfitting. Although SM has been diagnosed with the above diagnosis, this cannot explain misconduct or preclude the SM from administrative proceedings. SM is able to comprehend and understand the administrative proceedings. The SM is cleared for administrative separation under AR 635-200. Report of Medical Examination, 15 January 2015, the examining medical physician noted in the comments section: PTSD/Depression/Anxiety: Sees SW weekly for sessions. Also, TBI referral. Report of Medical History, 15 January 2015, the examining medical physician noted in the comments section: Several visits for anxiety. SI (no plan) with admission to Skyline 11 – 16 July 2014. 5. APPLICANT-PROVIDED EVIDENCE: Online application; DD Form 214; Medical Record. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is enrolled in college. 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) 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 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 contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. The applicant contends an upgrade of the discharge would allow medical care for the service- related injuries. Eligibility for veteran’s 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. The applicant is enrolled in college. 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: Post Traumatic Stress Disorder, Major Depressive Disorder (under multiple diagnoses), Anxiety, and mild Traumatic Brain Injury. (2) Did the condition exist or experience occur during military service? Yes. The Board’s Medical Advisor found evidence of PTSD, Major Depressive Disorder, and Anxiety at the time of service. The applicant also appears to have a history of depression prior to service. Medical records also reference potential TBI. ADHD is also described, but is not considered a potentially mitigating condition. (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 applicant’s behavioral health conditions do not mitigate the applicant’s offenses. Additionally, the applicant’s medical records reference potential TBI although there is no evidence that this resulted in noteworthy impairment of cognition, mood, or behavior to be further considered for mitigation. There is no evidence to support psychiatric mitigation, as PTSD, Major Depression, and Anxiety do not result in the inability to differentiate right from wrong and adhere to the right. There is no nexus between such conditions and the wrongful sexual act upon a child cited in the basis of separation. (4) Does the condition or experience outweigh the discharge? N/A. 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 Post Traumatic Stress Disorder, Major Depressive Disorder (under multiple diagnoses), Anxiety, or mild Traumatic Brain Injury outweighed the applicant’s medically unmitigated offense of committing a sexual act upon a minor. b. Response to Contention(s): (1) The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board considered this contention, but does not grant relief to gain employment or enhance employment opportunities. (2) The applicant contends an upgrade of the discharge would allow medical care for the service-related injuries. 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. (3) The applicant is enrolled in college. The Board considered the applicant’s post- service accomplishments, but determined that applicant’s continuing education does not outweigh the applicant’s offense of committing a sexual act upon a minor. 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 to all the evidence before the Board, the applicant’s Post Traumatic Stress Disorder, Major Depressive Disorder (under multiple diagnoses), Anxiety, or mild Traumatic Brain Injury did not outweigh the applicant’s medically unmitigated offense of committing a sexual act upon a minor. The Board also considered the applicant's contentions regarding post-service accomplishments and access to benefits and found that the totality of the applicant's record does not warrant a discharge 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 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, and 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 AR20210001623 1