1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: Yes 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is under other than honorable conditions. The applicant, through counsel, requests an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant reported abuse, sought help, and suffered from a behavioral health condition. The applicant was diagnosed with an adjustment disorder on 23 October 2014 during the separation process; however, the symptoms surrounding the disorder began earlier after suffering physical, emotional, and sexual abuse at the hands of a former spouse. On 26 September 2009, the applicant reported the abuse to the Military Police in Germany; however, no proper investigation was commenced, and the file was closed. The applicant’s anxiety, depression, and sexual dysfunction began during the first marriage due to this violence and the absolute lack of support received from leadership. As a male victim of domestic abuse, the applicant faced an uncaring and unsupportive system which allowed the applicant to fester in an unhealthy situation and succumb to the ravages of mental disorder. The applicant faced hardships during the time in the Army. The applicant remained an exemplary Soldier. The applicant’s behavioral health condition from these repeated assaults and symptoms significantly contributed to the misconduct, which led to the discharge. The applicant’s performance ratings both before and after the ordeal showed the applicant was competent and committed to excellence. The applicant good character before and after the discharge, shows the lasting stigma of the current service characterization is unduly burdensome and inequitable. In a records review conducted on 7 July 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 (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 16 March 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 20 January 2015 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant possessed child pornography. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 27 January 2015 (5) Administrative Separation Board: On 27 January 2015, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 19 February 2015 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 May 2010 / 6 years b. Age at Enlistment / Education / GT Score: 23 / Some College / 114 c. Highest Grade Achieved / MOS / Total Service: E-5 / 36B20, Financial Management / 7 years, 10 months, 9 days d. Prior Service / Characterizations: RA, 8 May 2007 – 10 May 2010 / HD e. Overseas Service / Combat Service: Germany, Kuwait, SWA / Afghanistan (20 October 2009 – 13 October 2010) f. Awards and Decorations: ARCOM, AAM-4, AGCM-2, NDSM, GWOTEM, GWOTSM, NCOPDR, ASR, OSR-3, MOVSM g. Performance Ratings: 1 September 2013 – 6 January 2014 / Fully Capable 7 January 2014 – 18 July 2014 / Fully Capable 19 July 2014 – 19 February 2015 / Marginal h. Disciplinary Action(s) / Evidentiary Record: The People of the State of New York, Felony Complaint, filed dated 19 December 2014, reflects the applicant waived indictment and giving consent to be prosecuted by Superior Court Information on 19 December 2014, for the crime of: promoting a sexual performance by a child (DF) PL 263.15, committed on or about 29 April 2014. On 19 December 2014, the applicant, entered a plea of guilty to: promoting a sexual performance by a child (DF) PL 263.15. Military Police Report, dated 9 July 2014, reflects the applicant was apprehended for: possessing a sexual performance by a child NYPL 263.16 (Civil) (5 counts) (Off Post). i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation (MSE), dated 23 October 2014, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with: Adjustment Disorder, with mixed anxiety and depressed mood. The MSE was considered by the separation authority. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Legal Brief with all listed enclosures, A through Z; eight third-party letters; medical records; copies of military personnel records; college transcripts; VA documents. 6. POST SERVICE ACCOMPLISHMENTS: The applicant successfully completed offender treatment, program as condition of the applicant’s probation. The applicant earned an Associate’s Degree from the University of Maryland; Bachelor's Degree in Operations Management at Baruch College; and, has recently been accepted into the MBA program. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities’ last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember’s date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (6) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (7) Paragraph 14-12c prescribes a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. e. Army Regulation 635-5-1, Separation Program Designator (SPD) Codes, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKQ” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaivable 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 record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the applicant’s mental disorder contributed to the misconduct that led to the applicant’s unfavorable discharge. The applicant contends that the applicant’s history as a victim of physical, emotional, and sexual domestic abuse contributed to the misconduct that led to led to the applicant’s unfavorable discharge. The applicant contents that the applicant’s good character, involvement in the community, and positive contributions to society warrant an upgrade under the principles of equity and justice. The applicant contends family issues affected behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends lack of support received from leadership while being a victim of domestic abuse from spouse. The 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 third party statements provided with the application speak highly of the applicant. They all recognize the applicant’s good conduct after leaving the Army. The applicant contends obtaining degrees and volunteering in the community. 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: Adjustment Disorder, Anxiety Disorder, IPV and MST. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant’s Adjustment Disorder, Anxiety Disorder intimate partner violence (IPV) and MST existed during the 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 and opined that the applicant’s Adjustment Disorder, Anxiety Disorder or IPV or MST mitigate the applicant’s offense of possessing child pornography as there is no natural sequelae between the applicant’s behavioral health conditions or MST/IPV and the and no evidence in the medical record that applicant’s BH conditions or experiences were contributory to this misconduct, which is a thoughtful and willful act to violate the law. (4) Does the condition or experience outweigh the discharge? No. After the Board applied liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant’s Adjustment Disorder, Anxiety, and IPV/MST did not outweigh the applicant’s medically unmitigated offense – possessing child pornography. b. Response to Contention(s): (1) The applicant contends lack of support received from leadership while being a victim of domestic abuse from spouse. The Board considered this contention and determined the applicant’s official record did not contain evidence nor did the applicant provide evidence, other than the applicant’s statement that considered the applicant’s statement to conclude that the Command did not take appropriate action to assist the applicant get assistance for the applicant’s IPV/MST. (2) 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 possessing child pornography, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (3) The applicant contends the applicant’s mental disorder contributed to the misconduct that led to the applicant’s unfavorable discharge. The Board liberally considered this contention and determined that the applicant’s Adjustment Disorder, Anxiety, and IPV/MST did not outweigh the applicant’s medically unmitigated offense – possessing child pornography. (4) The applicant contends that the applicant’s history as a victim of physical, emotional, and sexual domestic abuse contributed to the misconduct that led to led to the applicant’s unfavorable discharge. The Board considered this contention and determined that the applicant’s history as a victim of physical, emotional, and sexual domestic abuse do not excuse, mitigate or outweigh the misconduct based on the seriousness of the applicant’s offense of possessing child pornography. (5) The applicant contents that the applicant’s good character, obtaining degrees, volunteering in the community, and positive contributions to society warrant an upgrade under the principles of equity and justice. The Board considered this contention and determined that the applicant’s good character, obtaining degrees, volunteering in the community, and positive contributions to society do not excuse, mitigate or outweigh the misconduct based on the seriousness of the applicant’s offense of possessing child pornography. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration, determined that the applicant’s Adjustment Disorder, Anxiety, and IPV/MST did not outweigh the applicant’s medically unmitigated offense – possessing child pornography. The Board also considered the applicant’s contention regarding post-service accomplishments and lack of leadership support relating to the applicant’s IPV/MST, and determined the characterization of service is appropriate. 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 UOTH 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 AR20210002775 1