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, the evidence and the military record reflects most of the applicant’s service was honorable except for four months and the allegations against the applicant were disproved. The events which led to the applicant’s discharge were: A opposite sex Soldier named L. approached the applicant at the morning chow hall and requested the applicant wake the Soldier up for lunch time. The applicant and a fellow Soldier K. entered the opposite sex barracks and went to L.’s room with the door open and K. and the applicant called out to L. shrugged the shoulder and said it is time to wake up. As K. and the applicant were leaving a SSG approached them and inquired as to why they were in the opposite sex barracks. The applicant responded “to wake up L. for lunch per L.’s request” SSG acknowledged, and K. and the applicant went to lunch. In the evening SGT H. approached the applicant in the room ordering the applicant to get battle ready. The applicant was escorted to the CO’s office where the applicant was informed of L’s allegation of sexual assault. They stated L. stated the applicant touched L. in ways the applicant should only touch their spouse. During this meeting the applicant’s M16 bolt was taken and weapon returned to the applicant. The applicant remained at the FOB for two weeks before being transferred to another FOB during this time the legal counsel informed the applicant of an investigation which occurred which disproved the allegations, the applicant admitted to fingerprints being on the door and doorknob explaining the applicant opened the door to wake up L. The legal counsel informed the applicant was in violation of a direct order, at this time the legal counsel encouraged the applicant to take a Chapter 10, believing the counsel had the applicant’s best interest at heart, the applicant followed the recommendation. Since being discharged, the applicant has not had any criminal or legal issues, the applicant was employed from the time of the military separation until September 2014 when the applicant was admitted into the Crisis Response Center for severe depression, it was at this time the applicant was evaluated and diagnosed with Combat PTSD, Panic Disorder, Anxiety and Hallucinations. The applicant has since been enrolled into a local mental health program named COPE, where the applicant attends groups for anger management. The applicant is also followed by their psychiatrist who manages strict medication regiment once a month. The applicant also participates in counseling through a local facility which specializes in Vets with PTSD called the Vet Center. The applicant participates in the church military ministry where the applicant meets once a week with other Soldiers which are diagnosed with Combat PTSD. The applicant is currently on Social Security Disability Income (SSDI) and is not eligible for Medicare for another year and a half. It was during the SSDI determination, the applicant was encouraged to apply for VA benefits to meet the medical needs and is how the applicant for benefits was started. The applicant believes the investigation which disproved the allegations against the applicant, the fact the applicant had no other discrepancies and the character letters attached show the applicant is qualified to have an honorable discharge. b. Board Type and Decision: In a records review conducted on 11 May 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: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 13 July 2005 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): NIF / However, the applicant’s Request for Discharge in Lieu of Trial by Court-Martial reflects the charges preferred against the applicant were as follows: Charge 1: Indecent Assault, in violation of Article 134, UCMJ and Charge II: Failure to Obey General Order, in violation of Article 92, UCMJ. (2) Legal Consultation Date: 21 April 2005 (3) Basis for Separation: Pursuant to the applicant’s request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 13 May 2005 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 March 2002 / 3 years / On 28 April 2004, the applicant extended the current enlistment for 10 months. The DD Form 214 reflects the applicant was retained in service 108 days for the convenience of the government per UP 10 USC 12305. b. Age at Enlistment / Education / GT Score: 28 / High School Graduate / 88 c. Highest Grade Achieved / MOS / Total Service: E-4 / 63M10, Bradley Fighting Vehicle System Maintainer / 3 years, 3 months, 16 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (25 November 2002 – 16 July 2003 and 19 January 2005 – 4 June 2005) f. Awards and Decorations: PUC, NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 29 December 2003, reflects an investigation revealed Liberty County Sheriff’s Department observed the applicant operating a white in color 1996 Ford Contour with expired tags. A traffic stop was initiated and a check of GCIC revealed the applicant’s license was suspended and did not have valid insurance. The applicant was then arrested and transported to the Liberty Count jail where the applicant was processed and released to Military Police. The applicant was then transported to the MP station where the applicant was issued a post suspension of driving privileges memorandum (indefinite). The applicant was further processed and released to the unit on a DD Form 2708. CID Report of Investigation – Final Supplemental, dated 1 June 2005, reflects an investigation established probable cause to believe the applicant committed the offenses of Indecent Assault and Housebreaking when the applicant entered PFC [redacted] barracks room and rubbed the thigh without consent. Investigation further established probable cause to believe the applicant committed the offense of Failure to Obey a General Order, when the applicant twice entered the opposite sex barracks, a violation of General Order 2, paragraph 2b. Further investigation revealed the applicant’s fingerprints were discovered on a Gatorade bottle found in PFC [redacted] barracks room. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Cope Community Services letter, reflects on 10 October 2014 the applicant was diagnosed with F43.12; Post-traumatic stress disorder, chronic and F31.5: Bipolar disorder, current episode depressed, severe with psychotic features and prescribed medication. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; partial separation packet; three third-party letters; VA Rating Decision Letter; DD Form 214. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has had no criminal or legal issues and was employed until September 2014. The applicant participates in the church military ministry where the applicant meets once a week with other Soldiers diagnosed with Combat PTSD. 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 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. (6) Paragraph 10-8a stipulates a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. (See chap 3, sec II.) 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 “KFS” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, In Lieu of Trial by Court-Martial. 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 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 good service, including two combat tours. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends unjustly being accused of sexual assault. The investigation disproved the allegations against the applicant. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends legal counsel informed the applicant of violating a direct order and encouraged the applicant to take a Chapter 10. The applicant believed counsel had the applicant’s best interest at heart and followed the recommendation. The evidence in the applicant’s Army Military Human Resource Record (AMHRR) confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, in consultation with legal counsel, voluntarily requested, in writing, a discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and indicated an understanding an under other than honorable conditions discharge could be received, and the discharge would have a significant effect on eligibility for veterans’ benefits. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends being diagnosed with PTSD. The applicant provided a copy of Cope Community Services letter, which reflects on 10 October 2014 the applicant was diagnosed with F43.12; Post-traumatic stress disorder, chronic and F31.5: Bipolar disorder, current episode depressed, severe with psychotic features and prescribed medication. The AMHRR does not contain a mental status evaluation (MSE). The third-party statements provided with the application speak highly of the applicant. They all recognize the applicant’s good conduct while serving in the Army. The applicant has had no criminal or legal issues and was employed until September 2014. The applicant participates in the church military ministry where the applicant meets once a week with other Soldiers diagnosed with Combat PTSD. 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, Bipolar Disorder. (2) Did the condition exist or experience occur during military service? No. The Board's Medical Advisor found there is no evidence of any mitigating behavioral health conditions existing during military service. Applicant was not diagnosed in service with any BH conditions. There is evidence of multiple BH conditions diagnosed nine years post service to include PTSD, Bipolar Disorder, and Major Depressive Disorder, but there is no evidence that any of these conditions existed during military service. Specifically, the applicant underwent a Compensation & Pension Exam in 2017 that determined that none of these conditions were service connected. (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A 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, but determined that the serious nature of the applicant’s misconduct, an indecent assault, does constitute an incident sufficient to characterize a Soldier’s service in accordance with AR 635-200, paragraph 3-5. Therefore, a discharge upgrade is not warranted. (2) The applicant contends good service, including two combat tours. The Board considered this contention, including applicant’s three years of service, and determined that the totality of applicant’s record of service does not outweigh applicant’s indecent assault misconduct. Therefore, no upgrade is warranted. (3) The applicant contends unjustly being accused of sexual assault. The investigation disproved the allegations against the applicant. The Board considered this contention, but determined that applicant voluntarily, with counsel, requested discharge in lieu of trial by court- martial. There is not evidence in the applicant’s AMHRR or applicant-provided evidence to support this contention other than applicant’s statement. Therefore, no upgrade is warranted. (4) The applicant contends legal counsel informed the applicant of violating a direct order and encouraged the applicant to take a Chapter 10. The applicant believed counsel had the applicant’s best interest at heart and followed the recommendation. The Board considered this contention, but determined that applicant voluntarily, with counsel, requested discharge in lieu of trial by court-martial. Therefore, no upgrade is warranted. (5) The applicant contends being diagnosed with PTSD. The Board liberally considered this contention, but the Board Medical Advisor found no evidence that applicant’s PTSD, Bipolar Disorder, or Major Depressive Disorder existed during applicant’s service. Applicant’s misconduct cannot be excused or mitigated without service-connection. Therefore, no discharge upgrade is warranted. (6) The applicant has had no criminal or legal issues and was employed until September 2014. The applicant participates in the church military ministry where the applicant meets once a week with other Soldiers diagnosed with Combat PTSD. The Board considered applicant’s clean record and volunteer service, but did not find that these accomplishments outweigh the applicant’s indecent assault and associated misconduct. Therefore, no upgrade is warranted. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. 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 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 of all the evidence before the Board, there was insufficient evidence that applicant’s Post Traumatic Stress Disorder, Major Depressive Disorder, Bipolar Disorder existed during applicant’s service so these conditions could not excuse or mitigate the offenses of indecent assault and violation of a lawful order. The Board considered applicant’s contentions regarding good service and post-service accomplishments and determined that the totality of applicant’s record does not warrant 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 AR20210002099 1