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, the method used to achieve the discharge was improper. The applicant believes misleading information was used to justify the extension past the ETS date. The applicant petitions for an upgrade based on the advice of former Trial Defense Counsel Captain K. D. The two different DD Forms 214 filed in the OMPF caused significant hardship and have made obtaining VA benefits extremely impossible because the VA treats each DD Form 214 as a separate period of service, and they are unsure how to proceed. b. Board Type and Decision: In a records review conducted on 11 July 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 (Civil Conviction) / AR 635-200, Chapter 14, Sec II / JKB / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 9 March 2015 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 (6). (1) Date of Notification of Intent to Separate: 12 January 2015 (2) Basis for Separation: The applicant was informed of the following reasons: On 28 March 2014, the applicant was found guilty of four counts of invasion of privacy, Official Code of Georgia Annotated (OCGA), Section 16-11-62, in the Superior Court of Chatham County, Georgia. (3) Recommended Characterization: Honorable (4) Legal Consultation Date: 12 and 21 January 2015 (5) Administrative Separation Board: On 2 February 2015, the applicant was notified to appear before an administrative separation board and advised of the rights available to the applicant. On 3 and 6 February 2015, the intermediate commanders recommended denying the applicant’s request to conditionally waive consideration of the case before an administrative separation board, contingent upon receiving a characterization of service of no less than a general (under honorable conditions). The applicant’s request to conditional waive consideration of the case before an administrative separation board, contingent upon receiving a characterization of service no less favorable than general (under honorable conditions) discharge is NIF. The proceedings, and the findings and recommendations of the administrative separation board are NIF. (6) Separation Decision Date / Characterization: 26 February 2015 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 December 2008 / 6 years / The applicant was extended 90 days beyond the ETS date of 9 December 2014, pursuant to the Department of the Army, Office of the Deputy Chief of Staff G-1 memorandum, dated 10 December 2014, waiving the restrictions of AR 635-200, paragraph 1-26, regarding the extension of a Soldier beyond ETS. The waiver provided for an extension to retain the applicant on active duty for an additional 90 days, effective 10 December 2014, to process an administrative separation of the applicant. b. Age at Enlistment / Education / GT Score: 25 / two years of college / 120 c. Highest Grade Achieved / MOS / Total Service: E-7 / 13f / 120 d. Prior Service / Characterizations: RA, 23 August 2001 – 29 October 2005 / HD RA 30 October 2005 – 9 December 2008 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (26 September 2002 – 31 January 2003; 4 November 2003 – 28 January 2004; 6 January 2005 – 20 February 2005; 1 October 2008 – 1 February 2009; 24 August 2009 – 16 December 2009; 6 July 2010 – 26 July 2010; 25 August 2010 – 21 October 2010; 9 December 2012 – 15 July 2013); Iraq (10 March 2003 – 29 April 2003; 3 April 2004 – 20 May 2004; 5 October 2005 – 6 January 2006; 4 June 2006 – 5 October 2006; 7 April 2007 – 4 July 2007; 4 January 2008 – 2 March 2008) f. Awards and Decorations: ACM-CS-4, JSCOM-2, ARCOM-3, AAM-3, JMUA, PUC, AGCM-4, NDSM, GWOTSM, ICM-CS-4, NCOPDR-3, ASR, NATOMDL, CAB, Ranger Tab g. Performance Ratings: 1 September 2008 – 21 January 2011 / Among the Best 21 January 2011 – 10 July 2013 / Among the Best 11 July 2013 – 10 July 2014 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: The applicant’s AMHRR is void of the case separation file. However, the applicant provided several documents which are herein described. State of Georgia, Superior Court of Chatham County Bill of Indictment, reflects four Counts of Invasion of Privacy under OCGA, § Section 16-11-62, between 1 July and 31 August 2013, through the use of a camera, a device, without the consent of all persons observed, the applicant unlawfully recorded the activities of: Count 1, M. P.; Count 2, G. M.; Count 3, C. M.; and Count 4, B. M., which have occurred in a private place, out of the public view, contrary to the laws of the State of Georgia, the good order, peace and dignity thereof. Superior Court of Chatham County State of Georgia, Final Disposition Felony Sentence with Probation document reflects the applicant pleaded guilty, received a total sentence of 10 years with a creditable time of 12 days in confinement, from 21 February to 4 March 2014, and to serve the remainder of the 10 years on probation. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): General (Under Honorable Conditions) (1) Applicant provided: Health Record, dated 21 November 2014, reflects treatment and prescribed medication for PTSD, Adjustment Disorder with Anxiety and Depressed Mood, Adjustment Disorder with Anxiety, and Depression. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Forms 214 and 215; TDS memorandum; OCGA § 16-11-62 statute; Warrant Officer Candidate congratulatory letter and selection/application packet; NCOERs; Health Records; ERB; Army Directive 2014-29; 2015 separation Orders; DD Form 214 (9 December 2014 separation date); email correspondence; self-authored statement to Admin Separation Board; separation packet; Congressional correspondence; VA benefits letter; Installation Clearance documents and Orders for December 2014 separation; Article 138 Redress correspondence; Superior Court of Chatham County court documents; VA benefits eligibility letter; and enlistment documents. 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) Section II, Paragraph 14-5, prescribes conditions which subject a Soldier to discharge and reduction in grade. A Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present. This includes similar adjudication in juvenile proceedings: 1) A punitive discharge authorized for the same or a closely related offense under the MCM 2002, as amended; 2) The sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. Adjudication in juvenile proceedings includes adjudication as a juvenile delinquent, wayward minor, or youthful offender; Initiation of separation action is not mandatory. Although the conditions established in a (1) or (2), above, are present, the immediate commander must also consider whether the specific circumstances of the offense warrant separation. If the immediate commander initiates separation action, the case will be processed through the chain of command to the separation authority for appropriate action. A Soldier convicted by a civil court or adjudged a juvenile offender by a civil court will be reduced or considered for reduction. 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 “JKB” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, section II, misconduct (civil conviction). 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 waivable and nonwaivable 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 waivable. 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’s AMHRR is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. However, the applicant provided several documents which provided sufficient information on the basis for the applicant’s discharge. The applicant’s AMHRR also contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s electronic signature. The applicant’s DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, SEC II, by reason of Misconduct (Civil Conviction), with a characterization of service of general (under honorable conditions). Army Regulation 635-200, in pertinent part, stipulates a Soldier may be separated when initially convicted by civil authorities, or when action is taken tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for six months or more, without regard to suspension or probation. At the time of the applicant’s discharge, the applicant had been convicted of four counts of invasion of privacy, Official Code of Georgia Annotated (OCGA), Section 16-11-62, in the Superior Court of Chatham County, Georgia, and was sentenced to 10 years confinement. The applicant served a total of 12 days in confinement and the remainder of the 10-year sentence was to be served on probation. The applicant contends the method used to discharge the applicant was improper and misleading information was used to justify the extension past the ETS date. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the two different DD Forms 214 filed in the applicant’s AMHRR caused significant hardship and have made obtaining VA benefits extremely impossible because the VA is unsure how to proceed with the two separate period of service. The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than used by the Army when determining a member’s discharge. 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. The applicant provided medical records indicating an in-service diagnoses and treatment for PTSD, adjustment disorder with anxiety and depressed mood, and prescribed medication. The applicant’s AMHRR contains no documentation of any behavioral health diagnoses. 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: depression and PTSD (subsumed under multiple diagnoses) and TBI. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found clear support for PTSD and depression at the time of service (PTSD service connected) with evidence of a history of service-related TBI noted in records. (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 has clear evidence of depression and PTSD (subsumed under multiple diagnoses) while on Active Duty and is service connected for PTSD. There is also history TBI associated with service although records suggest no evidence of a level of severity to significantly impair judgment, cognition, or behavior. Neither PTSD nor depression result in the inability to differentiate right from wrong and provide no mitigation for the conduct leading to discharge per the discharge information submitted by the applicant. There is no nexus between these conditions and the multiple counts of invasion of privacy described in the record. (4) Does the condition or experience outweigh the discharge? N/A. a. Response to Contention(s): (1) The applicant contends the method used to discharge the applicant was improper and misleading information was used to justify the extension past the ETS date. The Board considered this contention and determined there is insufficient evidence to support the method used to discharge the applicant was improper. 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 the current evidence of record, the Board determined the applicant’s discharge was appropriate. (2) The applicant contends the two different DD Forms 214 filed in the applicant’s AMHRR caused significant hardship and have made obtaining VA benefits extremely impossible because the VA is unsure how to proceed with the two separate period of service. 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. The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Army when determining a member’s discharge characterization. (3) The applicant provided several medical documents indicating diagnoses and treatment for in-service PTSD, adjustment disorder with anxiety and depressed mood, and prescribed medication. The Board considered this contention and determined the applicant’s PTSD, adjustment disorder with anxiety and depressed mood, and prescribed medication do not outweigh the misconduct of multiple counts of invasion of privacy basis for separation. b. 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. c. 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 depression, PTSD and TBI did not excuse or mitigate the offenses of multiple counts of invasion of privacy. The Board also considered the applicant's contention regarding medical documents indicating diagnoses and treatment for in-service PTSD, adjustment disorder with anxiety and depressed mood, and prescribed medication and found that 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 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, 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 AR20210001809 1