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 applicant had a successful career in the Army with 17 years of service, including multiple combat deployments to Iraq and Afghanistan, earning numerous achievement awards, and having five periods of good conduct. After returning from Afghanistan, the applicant started to consume alcohol as a form of medicating the problems. The applicant came to realize PTSD was what the applicant was coping with and what the applicant did, caused a blemish on the Army. The applicant contends the one incident does not show who the applicant is as a person and as a United States Soldier. The applicant requests the Board to possibly restore the rank of SFC. b. Board Type and Decision: In a records review conducted on 16 August 2022, 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 / Under Other Than Honorable Conditions b. Date of Discharge: 1 November 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 June 2016 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was convicted of two charges: fourth degree sexual offense and second-degree assault in the state of Maryland. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 29 June 2016 and 2 August 2016 (5) Administrative Separation Board: On 29 June 2016, the applicant conditionally waived 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. On 26 July 2016, the separation authority denied the applicant’s request for conditional waiver. On 2 August 2016, the applicant unconditionally waived consideration of the case by an administrative separation board. (6) Separation Decision Date / Characterization: 31 October 2016 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 15 December 2011 / Indefinite b. Age at Enlistment / Education / GT Score: 31 / HS Graduate / 101 c. Highest Grade Achieved / MOS / Total Service: E-7 / 31B1P, 8R Military Police / 16 years, 5 months, 23 days d. Prior Service / Characterizations: RA, 13 August 1999 – 19 August 2003 / HD RA, 20 August 2003 – 5 July 2005 / HD RA, 6 July 2005 – 29 December 2008 I HD RA, 30 December 2008 – 14 December 2011 / HD e. Overseas Service / Combat Service: Germany, Italy, SWA / Afghanistan (1 March 2010 – 14 February 2011); Iraq (27 April 2003 – 15 August 2004) f. Awards and Decorations: BSM, ARCOM-3, JSAM, AAM-4, AGCM-5, NDSM, KCM- BSS, ACM-CS, ICM-3CS, GWOTEM, GWOTSM, NCOPDR-2, ASR, OSR-5, NATOMDL-2, PUC, MUC-2, JMUA g. Performance Ratings: 1 December 2011 – 30 November 2012 / Among The Best 1 December 2012 – 30 November 2013 / Fully Capable 1 December 2013 – 30 November 2014 / Among The Best 30 November 2014 – 19 October 2015 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Circuit Court for Anne Arundel County in Maryland court documents reflect the applicant pleading guilty to Counts Two and Three: To Count Two, Sex Offense of 4th Sexual Contact, the applicant was found guilty and sentenced to one-year jail term; and to Count Three, Assault Offense of 2nd Degree, the applicant was found guilty and sentenced to a 5-year jail term, to be served concurrently, and all but one-year of the 5-year jail term was suspended. The applicant also received a five-year supervised probation and a Tier I Sex Offender registration. CID Agent’s Investigation Report, dated 11 January 2016, reports the applicant was arrested and charged with Assault-Second Degree, Sex Offense 3rd Degree, and Sex Offense 4th degree on 11 January 2016. i. Lost Time / Mode of Return: 271 days (Confined by Civil Authorities, 5 December 2015 – 31 August 2016) / NIF j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 15 December 2015, reflects, in pertinent part of the diagnoses, “AXIS I,” a diagnosis of “PTSD, Major Depressive Disorder – Severe, Alcohol Use Disorder, Generalized Anxiety Disorder.” A second Report of Mental Status Evaluation, dated 22 April 2016, reflects an “AXIS I” diagnosis of “Alcohol Use Disorder, Major Depressive Disorder, partial remission; Other Specified Trauma-and-Stressor-Related Disorder.” Medical Evaluation Board Proceedings, dated 19 October 2016, presents diagnosis of “Post- Traumatic Stress Disorder (PTSD), VA Diagnosis: Major Depressive Disorder, Other Specified Trauma and Stressor-Related Disorder,” and “DoD diagnosis - Fails to meet retention standards.” The applicant provided VA letter, dated 16 March 2018, with VA Progress Notes, which the applicant described as outlining the diagnosis of PTSD stemming from an incident in Kuwait. The Progress Notes reflect a psychiatric diagnosis of “PTSD, Unspecified depressive d/o (MDD vs r/o bipolar II d/o).” 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; and VA letter. 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) 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) Chapter 14, 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. (8) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army’s best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. 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 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 record of service, the issues and documents submitted with the application were carefully reviewed. 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 confined by civilian authorities for eight months and 27 days. The applicant contends a successful career with over 17 years of service, including multiple combat deployments to Iraq and Afghanistan, earning numerous achievement awards, and having five periods of good conduct. The Board considered the service accomplishments and the quality of service. The applicant contends consuming alcohol as a form of medicating the PTSD symptoms. The applicant’s AMHRR contains documentation which supports a diagnosis of in-service PTSD, and “Major Depressive Disorder – Severe, Alcohol Use Disorder, Generalized Anxiety Disorder.” The record shows the applicant underwent mental status evaluations (MSE) on 15 December 2015 and 22 April 2016, which reflected the diagnosis of PTSD. The MSE was considered by the separation authority. The applicant also provided several VA medical documents indicating the diagnosis of PTSD stemming from an incident in Kuwait, and VA Progress Notes reflecting a psychiatric diagnosis of “PTSD, Unspecified depressive d/o (MDD vs r/o bipolar II d/o).” The applicant contends the one incident which led to the discharge from the Army does not show who the applicant is as a person and a Soldier. Army Regulation 635-200, 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 rank of Sergeant First Class (SFC) should be restored, if possible. The applicant’s request does not fall within this board’s purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans’ Service Organization. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found the following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: AHLTA contains an in-service BH diagnosis of Major Depression and the applicant is VA service connected for PTSD. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant service-connected for Major Depression and PTSD, and therefore accepts that these conditions existed during applicant’s military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration to all available information regarding any medical mitigation, and opined that while the applicant has BH diagnoses of PTSD and Major Depression, neither conditions mitigate the applicant’s civil convictions that were the basis for separation. Specifically, applicant’s sexual offense and assault that lead to applicant’s civil conviction are not part of the sequela of symptoms associated with either PTSD or Major Depression, nor was there any nexus between either of these BH conditions and the applicant’s undelying misconduct that lead to applicant’s discharge from military service. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board concurred with the Board’s Medical Advisor’s opine, and subsequently voted that the applicant’s BH conditions did not outweigh the unmitigated basis for applicant’s separation – Civil conviction of sexual offense and assault. b. Response to Contention(s): (1) The applicant contends a successful career with over 17 years of service, including multiple combat deployments to Iraq and Afghanistan, earning numerous achievement awards, and having five periods of good conduct, against a single incident of misconduct that lead to applicant’s separation warrants an upgrade in discharge characterization of service. The Board considered the totality of the applicant’s service record, but determined the applicant’s discharge characterization 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. The severity of the applicant’s Civil conviction of a sexual offense, and assault brought discredit on the Army, was prejudicial to good order and discipline, and diminished the quality of service below that meriting a general discharge at the time of separation. (2) The applicant contends consuming alcohol was a form of self-medication for applicant’s PTSD symptoms. The Board liberally considered this contention, but voted that the applicant’s BH conditions did not outweigh the unmitigated basis for applicant’s separation – Civil conviction of sexual offense and assault. (3) The applicant contends the rank of Sergeant First Class (SFC) should be restored. The Board considered this contention but determined that the applicant’s requested change of rank restoration does not fall within the purview of the ADRB. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using a DD Form 149 regarding this matter. A DD Form 149 may be obtained from a Veterans’ Service Organization. c. The Board determined 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 of all the evidence before the Board, the applicant’s PTSD and Major Depression did not outweigh the unmitigate applicant’s civil conviction of a sexual offense and assault, and the discharge was both proper and equitable. 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. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code, 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 AR20210002669 1