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: 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 discharge was in error because the applicant served honorably until the discharge date. The applicant had four reenlistments and six combat deployments. The applicant was diagnosed with PTSD and a treatment plan was implemented. On 3 June 2015, the applicant was arrested for possession of child pornography and later pled guilty to one count. The applicant served 23 months in prison. The applicant has obtained a Commercial Driver’s license which was paid for by the VA. In a records review conducted on 19 April 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: 14 April 2016 c. Separation Facts: The applicant AMHRR is void of the separation packet. However, the applicant submitted a copy of the commander’s report. (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: According to the Commander’s Report, the applicant was informed of the following reasons: between on or about 20 July 2014 and on or about 3 June 2015 the applicant received, possessed, and distributed child pornography. Between on or about 1 January 2004 and on or about 1 January 2006 the applicant smuggled a live grenade out of Iraq during one of his deployments. (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 January 2013 / Indefinite b. Age at Enlistment / Education / GT Score: 43 / Bachelor’s Degree / 116 c. Highest Grade Achieved / MOS / Total Service: E-7 / 68W40, Health Care Specialist / 23 years, 2 days / Based on the applicant’s Enlistment Document, the applicant’s DD Form 214, Block 12a, erroneously reflects 6 May 2000 and should reflect 17 October 2000. d. Prior Service / Characterizations: RA, 28 October 1992 – 30 March 1993 / HD USARCG, 1 April 1993 – 1 April 1996 / NA ARNG, 2 April 1996 – 5 May 1999 / GD USARCG, 6 May 1999 – 21 May 2000 / NA Break in Service RA, 17 October 2000 – 18 February 2005 / HD RA, 19 February 2005 – 25 November 2008 / HD RA, 26 November 2008 – 1 January 2013 / HD e. Overseas Service / Combat Service: Korea, SWA / Afghanistan (20 June 2005 – 4 August 2005; 29 November 2007 – 1 June 2008); Haiti (3 February 2010 – 4 May 2010); Iraq (4 January 2006 – 5 March 2006; 11 June 2006 – 19 July 2006); Trinidad and Tobago (6 January 2009 – 1 June 2009) f. Awards and Decorations: ACM-2CS, BSM, AM-2, ARCOM-4, AAM-3, AGCM-4, NDSM- 2, GWOTEM, GWOTSM, KDSM, HSM, ICM-CS, NCOPDR, ASR, OSR, CMB g. Performance Ratings: 15 June 2012 – 14 June 2013 / Among The Best 15 June 2013 – 14 June 2014 / Fully Capable 14 June 2014 – 13 June 2015 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: NIF i. Lost Time / Mode of Return: 19 days (CMA, 3 June 2015 – 22 June 2015) / Release from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a document from Walter Reed Army Medical Center, dated 24 September 2010, reflecting the applicant had a diagnosis of PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DA Form 4856; DD Form 149; Walter Reed Army Medical Center documents; VA benefits letter; Applicant statement; United States District Court Criminal complaint; Commander’s Report. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has obtained a Commercial Driver’s license. 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-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 record of service, the issues and documents submitted with the application were carefully reviewed. The applicant’s AMHRR is void of the specific facts and circumstances concerning the events which led to discharge from the Army. The applicant’s AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason of Misconduct (Serious Offense), with a characterization of service of under other than honorable conditions. The applicant contends having PTSD. The applicant’s AMHRR contains no documentation of PTSD diagnosis. The applicant did submit evidence to support the contention the discharge resulted from a medical condition. The applicant provided a document from Walter Reed Army Medical Center, dated 24 September 2010, reflecting the applicant had a diagnosis of PTSD. The AMHRR is void of a mental status evaluation. The applicant contends good service, serving honorably until the discharge date, four reenlistments and four combat deployments. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the VA paid for Commercial Driver’s License. The Army Discharge Review Board is authorized to consider post-service factors in the re-characterization 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 applicant has diagnoses of PTSD, Adjustment Disorder, and Anxiety – which potentially mitigate applicant’s misconduct. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found in-service BH diagnoses of PTSD, Adjustment Disorder, and Anxiety. (3) Does the condition or experience actually excuse or mitigate the discharge? No. After reviewing the available information and in accordance with Liberal Consideration, it is the opinion of the Board’s Medical Advisor that although the applicant has a BH diagnosis of PTSD and other BH disorders, these BH conditions are not mitigating factors for child Pornography and smuggling a live grenade out of Iraq during deployment because these acts of misconduct are not part of the sequela of symptoms associated with PTSD or other applicant BH conditions. (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, that the available evidence did not support a conclusion that any of the applicant’s medical conditions outweighed the basis for applicant’s separation. b. Response to Contention(s): (1) The applicant contends having PTSD. The ADRB liberally considered this contention but is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant’s time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member’s discharge characterization. In this case, the Board determined that the applicant’s offenses of receiving, possessing, and distributing child pornography and smuggling a live grenade out of Iraq during deployment are not mitigated by and therefore are not outweighed by the applicant’s PTSD and BH diagnoses. (2) The applicant contends good service, serving honorably until the discharge date, four reenlistments and four combat deployments. The Board considered the applicant’s prior service, including combat, 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 receiving, possessing, and distributing child pornography and smuggling a live grenade out of Iraq during deployment, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (3) The applicant contends the VA paid for Commercial Drivers Licenses. The ADRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge must be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings. 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. In this case, the Board considered this contention non-persuasive during its deliberations. 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, the applicant’s PTSD, Adjustment Disorder, and Anxiety did not mitigate the offenses of receiving, possessing, and distributing child pornography and smuggling a live grenade out of Iraq during deployment, 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, 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 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 AR20210003015 1