1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: 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 was entrapped by a system which was able to receive a grant from the Department of Homeland Security. The applicant states that the applicant was in an 18-year old and over chat room which required an identification check. The applicant claims that the police officer told the grand jury that the the applicant was just in a Yahoo chat site and never stated which one the applicant was in.. The applicant claims that the Virginia Bedford county police department never did any forensics on the applicant's laptop or cell phone. The applicant contends that if the police performed forensics, , the results would have shown that the applicant was in an 18 and up Yahoo chat site. The applicant states that the applicant served in Iraq, Afghanistan, Korea and Haiti and reenlisted twice and has PTSD that requires treatment. The applicant states that the applicant has flash backs of Soldier's in the unit being killed and requests the honor back so the applicant may get the needed medical help. The applicant claims the Colonel would not help the applicant and counsel believes the Colonel had a part in the applicant's record being destroyed. In a records review conducted on 21 June 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-3 / Under Other Than Honorable Conditions b. Date of Discharge: 17 June 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 7 April 2013 (2) Basis for Separation: The applicant was informed of the following reasons: On divers occasion between on or about 29 May 2012 to on or about 27 June 2012, the applicant solicited a minor, under 16 years old, for sex and used indecent language towards the minor. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: On 27 March 2013, the applicant waived legal counsel. (5) Administrative Separation Board: On 27 March 2013, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 April 2008 / 5 years b. Age at Enlistment / Education / GT Score: 26 / HS Graduate / 101 c. Highest Grade Achieved / MOS / Total Service: E-4 / 25U10, Signal Support System Specialist / 12 years, 3 months, 3 days d. Prior Service / Characterizations: RA, 16 August 2000 - 2 January 2004 / HD RA, 3 January 2004 - 25 April 2008 / HD e. Overseas Service / Combat Service: Haiti, Korea, SWA / Afghanistan (10 February 2011 - 6 August 2011); Iraq (20 September 2005 - 28 August 2006) f. Awards and Decorations: AFC-CS, ARCOM, AAM, MUC, AGCM-3, NDSM, GWOTEM, GWOTSM, AFSM, HSM, ICM-CS, ASR, OSR, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Bedford County Sheriff's Office Report, dated 24 September 2012, reflects on 20 September 2012, the applicant was arrested and charged with three counts of using a communication system to facilitate crimes against a child. Three Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Confined by Civil Authorities (CCA)," effective 20 September 2012; From "Confined by Civil Authorities (CCA)" to "Present for Duty (PDY)," effective 22 October 2012; and, From "Present for Duty (PDY)" to "Confined by Civil Authorities (CCA)" effective 19 November 2012. Report of Mental Status Evaluation, dated 26 October 2012, 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. CID Report of Investigation, dated 18 July 2013, reflects probable cause was established to believe the applicant committed the offense of Enticing a Child to Commit a Lewd Act when the applicant began an Internet conversation and asked for nude photographs of a person the applicant believed to be 14-years old. Additionally, the applicant sent nude photographs of oneself on multiple occasions and attempted to arrange a meeting for sex. On 11 June 2013, the applicant was prosecuted and convicted for two counts of Computer Solicitation. i. Lost Time / Mode of Return: 208 days: CCA, 20 September 2012 - 22 October 2012 / Released from Confinement CCA, 19 November 2012 - 15 May 2013 / NIF j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical Examination, dated 16 November 2012, the examining medical physician noted in the comments section: Anxiety/depression. The applicant provided a copy of medical record, dated 24 June 2013, which reflects the applicant was diagnosed with depression moderate, anxiety moderate, and PTSD mild. 5. APPLICANT-PROVIDED EVIDENCE: DD form 293; DA Form 1059; DD Form 4; DA Form 3286; ARCOM Certificate; medical records. 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) 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 record of service, the issues and documents submitted with the application were carefully reviewed. Counsel contends the applicant suffers from PTSD. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 26 October 2012, which indicates the applicant was mentally responsible and recognized right from wrong. The MSE does not indicate any diagnosis. The MSE was considered by the separation authority. Report of Medical Examination, dated 16 November 2012, the examining medical physician noted in the comments section: Anxiety/depression. The applicant provided a copy of medical record, dated 24 June 2013, which reflects the applicant was diagnosed with depression moderate, anxiety moderate, and PTSD mild. Counsel contends the Colonel would not help the applicant and counsel believes the Colonel had a part in the applicant's record being destroyed. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service, including two combat tours. The Board considered the service accomplishments and the quality of service. The applicant contends an upgrade of the discharge would allow veterans benefits. Eligibility for veteran's benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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. Applicant's PTSD, Acute Reaction to Stress, Anxiety Disorder, and Depression could mitigate the applicant's basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor the applicant's Acute Reaction to Stress, Anxiety Disorder, Depression, and PTSD existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor opined, after applying liberal consideration, that while the applicant has a BH diagnosis of PTSD and additional BH disorders, these conditions do not mitigate the applicant's basis for separation as soliciting a minor (14 years old) for sex, and using indecent language towards the minor are not part of the sequela of symptoms associated with PTSD, Acute Reaction to Stress, Anxiety Disorder, and Depression disorders. These behaviors are seen as willful, conscious behaviors perpetrated over time that do not have any nexus with applicant's BH disorders. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, and determined that the available evidence did not support a conclusion that any of the applicant's medical conditions of PTSD, Acute Reaction to Stress, Anxiety Disorder, and Depression disorders do not outweigh the unmitigated basis for applicant's separation for soliciting a minor, under 16 years old, for sex and using indecent language towards the minor. b. Response to Contentions: (1) Counsel contends the applicant suffers from PTSD. The Board liberally considered this contention and determined that the available evidence did not support a conclusion that any of the applicant's medical conditions of PTSD, Acute Reaction to Stress, Anxiety Disorder, and Depression disorders outweighed the unmitigated basis for applicant's separation for soliciting a minor, under 16 years old, for sex and using indecent language towards the minor. Therefore, an upgrade in the applicant's characterization of service is unwarranted. (2) Counsel contends the Colonel would not help the applicant and counsel believes the Colonel had a part in the applicant's record being destroyed. The Board considered this contention and determined that there is no evidence of arbitrary or capricious actions by the command. Therefore, based on this contention, the Board determined the applicant discharge is proper and equitable. (3) The applicant contends good service, including two combat tours. The Board considered this contention along with the applicant's two prior Honorable discharges and 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 soliciting a minor, under 16 years old, for sex and using indecent language towards the minor, the applicant diminished the quality of service below that meriting an upgrade. (4) The applicant contends an upgrade of the discharge would allow veterans benefits. The Board determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare, or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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 contentions 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 Acute Reaction to Stress, Anxiety Disorder, Depression, or PTSD did not outweigh the unmitigated offenses of soliciting a minor, under 16 years old, for sex and using indecent language towards the minor, and the discharge was proper and equitable. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, the applicant was provided full administrative due process, and the discharge was proper and equitable. (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 AR20210002890 1