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 discharge is improper because the applicant was discharged with two days left on the enlistment. The applicant had not yet been to trial. The discharge was based on a single incident which happened after over 24 months of service with no prior actions. b. Board Type and Decision: In a records review conducted on 11 April 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 / General (Under Honorable Conditions) b. Date of Discharge: 18 October 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 8 October 2013 (2) Basis for Separation: The applicant was informed of the following reasons: On 24 September 2012, the Superior Court of Chattahoochee County indicted the applicant for rape, child molestation, and aggravated child molestation. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 15 October 2013 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: Undated / General (Under Honorable Conditions) ? 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 July 2009 / 4 years, 16 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 95 c. Highest Grade Achieved / MOS / Total Service: E-4 / 12B10, Combat Engineer / 3 years, 11 months, 17 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (13 January 2010 – 28 October 2010) f. Awards and Decorations: ICM-2CS, ARCOM, NDSM, GWOTSM, ASR, OSR, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Georgia Bureau of Investigation (GBI) Region 3 Investigative Case Summary, dated 12 December 2011, reflects the applicant was investigated for child molestation, sodomy, and rape. On 26 September 2011, the applicant was interviewed and admitted the act was wrong and what the applicant did would be considered rape because the person was asleep and not being a willing participant in the act. The applicant denied performing oral sex on the person or allowing the person to perform oral sex on the applicant. The GBI Arrest Record, dated 30 September 2011, reflects the applicant was arrested for child molestation, sodomy, and rape. State of Georgia, Rape Child Molestation Aggravated Child Molestation Bill of Indictment, dated 24 September 2012, reflects the applicant was indicted for: Count 1 – Rape when on 5 February 2011, the applicant did have carnal knowledge of M. S., forcibly and against M. S.’s will; Count 2 – Child Molestation when on 5 February 2011, the applicant did unlawfully commit an immoral and indecent act upon the person of M. S., a child under the age of 16 years, by taking pictures of said child’s vagina, with the intent to arouse and satisfy the sexual desires of the applicant; and Count 3 – Aggravated Child Molestation when on 6 February 2011, the applicant did unlawfully perform an immoral and indecent act which did involve an act of sodomy upon the person of, M. S., a child under the age of 16 years by putting the penis in the child’s mouth, with intent to arouse and satisfy the sexual desires of the applicant. Superior Court of Chattahoochee County State of Georgia, Waiver of Arraignment and Entry of Appearance, dated 10 October 2012, reflects the applicant pled not guilty and waived formal arraignment. Developmental Counseling Form, dated 5 September 2013, for being directed to undergo a mental health evaluation because of pending separation. The applicant’s Enlisted Record Brief (ERB), dated 17 October 2013, reflects the applicant was flagged for Involuntary Separation or Discharge (Field Initiated) (BA), effective 3 April 2012; Adverse Action (AA), effective 12 March 2013; and was ineligible for reenlistment because of Pending Separation (9V). The applicant’s expiration term of service (ETS) is listed as 20 October 2013. i. Lost Time / Mode of Return: 122 days (CCA, 30 September 2011 – 30 January 2012) / Released from Confinement j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Mental Status Evaluation, dated 5 September 2013, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. The applicant had been screened for PTSD and mild traumatic brain injury (mTBI) with negative results. The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. The command was advised to consider the influence of these conditions. The applicant was diagnosed with: Adjustment Disorder and Insomnia. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 149; DD Form 293; National Personnel Records Center letter; Service Request All Details printout. 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 event which led to the discharge from the Army was an isolated 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 the discharge was improper because the applicant was discharged two days before the applicant’s expiration term of service. The AMHRR reflects the applicant’s ETS date was listed as 20 October 2013 and the applicant was discharged on 18 October 2013. The applicant had 122 lost days. It does not appear the lost days were recomputed in the original ETS date. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service, including a combat tour. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. ? 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: PTSD, mild TBI. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant is service connected for PTSD and there is evidence of deployment related TBI noted in VA 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 is service connected for PTSD and evidence supports presence of mild TBI suffered during deployment. Neither PTSD nor a mild TBI of the nature the applicant sustained would result in failure to differentiate right from wrong and adhere to the right. Such conditions do not mitigate any of the sexual offenses for which applicant was discharged. Applicant asserts discharge prior to trial, however medical records suggest a period of post-military incarceration for sexual offenses which, in the absence of other information, can reasonably be presumed associated with the offense leading to discharge. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the available evidence did not support a conclusion that the applicant’s PTSD or TBI outweighed the basis for applicant’s separation – rape, child molestation, and aggravated child molestation – for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board considered this contention and found this contention non- persuasive during deliberations as Army Regulation 635-200, paragraph 3-5, stipulates, in pertinent part, circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. After weighing the totality of the evidence, the Board determined this contention does not outweigh the nature and severity of the applicant’s offenses and thus, the discharge is proper and equitable. (2) The applicant contends the discharge was improper because the applicant was discharged two days before the applicant’s expiration term of service. The Board considered this contention and determined there was insufficient evidence of any arbitrary or capricious action taken by command. (3) The applicant contends good service, including a combat tour. The Board considered the totality of the applicant’s service record, but determined the applicant’s discharge was appropriate because the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the rape, child molestation, and aggravated child molestation offenses, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. 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, the available evidence did not support a conclusion that the applicant’s PTSD or TBI outweighed the basis for applicant’s separation – rape, child molestation, and aggravated child molestation. 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 GD was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to HD. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, as the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. ? 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: Legend: AWOL – Absent Without Leave AMHRR – Army Military Human Resource Record BCD – Bad Conduct Discharge BH – Behavioral Health CG – Company Grade Article 15 CID – Criminal Investigation Division ELS – Entry Level Status FG – Field Grade Article 15 GD – General Discharge HS – High School HD – Honorable Discharge IADT – Initial Active Duty Training MP – Military Police MST – Military Sexual Trauma N/A – Not applicable NCO – Noncommissioned Officer NIF – Not in File NOS – Not Otherwise Specified OAD – Ordered to Active Duty OBH (I) – Other Behavioral Health (Issues) OMPF – Official Military Personnel File PTSD – Post-Traumatic Stress Disorder RE – Re-entry SCM – Summary Court Martial SPCM – Special Court Martial SPD – Separation Program Designator TBI – Traumatic Brain Injury UNC – Uncharacterized Discharge UOTHC – Under Other Than Honorable Conditions VA – Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210002036 1