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 general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the garrison commander at the time signed off on retirement. The applicant was sent to a separation board and was extended twice past the ETS date to make good time lost. During the applicant's career several events came to mind, such as, Airborne School, September 11th attacks and the death of a Soldier. After this death, the applicant was part of the convoy with the 123rd Main Support Battalion which recovered the damaged vehicle the Soldier was on. Upon returning, leadership decided to name the dining facility after the Soldier. The applicant also served as a gun truck commander in a convoy with the 501st Infantry a few feet away in which 1LT B., was killed. This triggered a fellow Soldier in their battalion stray away from leadership. As a result, several convoys were deployed to find the Soldier resulting in more injuries and death. These were the times the applicant was suffering from Post-Traumatic Stress Disorder and often Adjustment Personality Disorder. In a records review conducted on 7 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-3 / General (Under Honorable Conditions) b. Date of Discharge: 16 November 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (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: 16 June 2008 / Indefinite / The applicant was extended at the convenience of the government. b. Age at Enlistment / Education / GT Score: 28 / Bachelor's Degree / 106 c. Highest Grade Achieved / MOS / Total Service: E-6 / 88M30, Motor Transport Operator / 20 years, 11 months, 25 days d. Prior Service / Characterizations: RA, 2 July 1997 - 13 August 2000 / HD RA, 14 August 2000 - 11 September 2002 / HD RA, 12 September 2002 - 21 July 2005 / HD RA, 22 July 2005 - 15 June 2008 / HD e. Overseas Service / Combat Service: Alaska, Germany, Korea, SWA / Afghanistan (15 May 2009 - 7 March 2010; 5 December 2011 - 4 October 2012; 28 February 2014 - 12 October 2014); Iraq (4 May 2003 - 4 August 2004) f. Awards and Decorations: ARCOM-7, AAM-2, NATOMDL, VUA, AGCM-5, NDSM, GWOTEM, GWOTSM, KDSM, ACM-2CS, NCOPDR-2, ASR, OSR-5, CAB, g. Performance Ratings: 1 February 2008 - 31 January 2009 / Among The Best 1 February 2009 - 31 January 2010 / Fully Capable 31 January 2010 - 30 January 2011 / Fully Capable 31 January 2011 - 30 January 2012 / Among The Best 31 January 2012 - 30 January 2013 / Fully Capable 31 January 2013 - 30 January 2014 / Fully Capable 31 January 2014 - 13 January 2015 / Marginal 13 January 2015 - 12 January 2016 / Highly Qualified 13 January 2016 - 11 January 2017 / Qualified h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 13 January 2015, for on or about 15 September to 5 October 2014; on or about 8 October to 18 October 2014 fail to obey a lawful general order and wrongfully sending inappropriate messages of a sexual nature to SPC R. and SGT O. The punishment consisted of a reduction to E-5; forfeiture of $1,562 pay per month for one month (suspended); and, extra duty for 45 days suspended. Special Court Martial Order Number 5, dated 23 June 2017, reflects the applicant was arraigned for the following offenses: Charge I: Article 91 Plea: Guilty Finding: Guilty. The Specification: Having received a lawful order from Command Sergeant Major H., a superior noncommissioned officer, then known by the accused to be a superior noncommissioned officer, to step out of vehicle, an order which it had to be obeyed, did at or near Fort Bragg, North Carolina, on or about 29 April 2016, willfully disobey the same. [Before Pleas the military judge granted an unopposed motion by the Trial counsel to amend Charge I and its Specification striking the word "superior" twice]. Plea: Guilty. Finding: Guilty. Charge II: Article 120a Plea: Not Guilty Finding: Dismissed. Charge III: Article 134. Plea: Guilty. Finding: Guilty. Specification 1: on or about 8 October 2014, in writing communicate to Sergeant O., certain indecent language, to wit: "SGT N.O. you have a bangin ass body and nice lips" or words to effect, such conduct being to the prejudice of the good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. [After arraignment but before pleas, the Military Judge granted an unopposed motion by the Trial counsel to amend Specifications 1, 2, and 3 of Charge III striking the words "and of a nature to bring discredit upon the armed forces"]. Plea: Guilty. Finding: Guilty. Specification 2: on or about 10 October 2014, in writing, communicate to Corporal L., certain indecent language, to wit: "Just flew in last nite wanna know can I get some pussy from you before I leave?" or words to effect, such conduct being to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. ["After arraignment but before pleas, the Military Judge granted an unopposed motion by the Trial counsel to amend Specifications 1, 2; and 3 or Charge III striking the words "and of a nature to bring discredit upon the armed forces"]. Plea: Guilty. Finding: Guilty. Specification 3: on or about 29 April 2016, orally communicate to First Lieutenant A., certain indecent language, to wit: "nice tits," or words to that effect, such conduct being to the prejudice of the good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. ["After arraignment but before pleas, the Military Judge granted an unopposed motion by the Trial counsel to amend Specifications 1, 2, and 3 of Charge III striking the words and of a nature to bring discredit upon the armed forces"]. Plea: Guilty. Finding: Guilty. Sentence was adjudged on 25 January 2017: To be reduced to Private (E-2), to be confined for six (6) months, and to be discharged from the service with a Bad-Conduct discharge. Only so much of the sentence as provides for reduction to Private (E-2) and confinement for 179 days is approved and would be executed. The applicant provided a Report of Mental Status Evaluation, dated 26 June 2017, which 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. i. Lost Time / Mode of Return: 140 days (CMA, 25 January 2017 - 14 June 2017) / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a VA Rating Decision, page 378, dated 17 November 2018, reflecting a 70 percent rating for PTSD with Traumatic Brain Injury. The applicant Cape Fear Valley Medical Document dated 4 February 2015, page 231, reflects the applicant was diagnosis with Occupational Problem. 5. APPLICANT-PROVIDED EVIDENCE: Two DA Forms 31; DA Form 1506; DA Form 4187; DA Form 2329; DD Form 149; DD Form 214; Extract from AR 635-200; Memorandum dated 7 September 2017; ERB; Two letters of Support; Applicant statement; Cape Fear Valley medical documents and VA Rating Decision. 6. POST SERVICE ACCOMPLISHMENTS: The applicant worked for the United States Post office and completed a Master's Degree in Education. 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) 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. (5) 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. (6) 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. The applicant's AMHRR is void of the specific facts and circumstances concerning the events which led to his 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 general (under honorable conditions). The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ." Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214 and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends suffering from PTSD while deployed. The applicant provided a Report of Mental Status Evaluation, dated 26 June 2017, which 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 provided a VA Rating Decision, dated 17 November 2018, reflecting a 70 percent rating for PTSD with Traumatic Brain Injury. The applicant contends being extended twice past the ETS date and the garrison commander had signed off on the applicant's retirement. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends having obtained employment at the United States Post office and earning a Master's Degree in Education. 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. The third party statements provided with the application speak highly of the applicant. They all recognize the applicant's good conduct before and after leaving the Army. 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 holds an Adjustment Disorder, PTSD, and TBI diagnoses that may mitigate various forms of misconduct that could be the basis for separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed in service with an Adjustment Disorder and is diagnosed and service-connected by the VA with PTSD and TBI. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor, after applying liberal consideration, opined that the applicant's basis for separation was for sexual harassment and disobeying a lawful order, and even though the disobeying the lawful order is mitigated by the applicant's BH conditions, none of applicant's BH conditions mitigate the sexual harassment because there is no natural sequelae between PTSD, TBI, or an Adjustment Disorder and sexual harassment. (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 weight of the evidence did not support a conclusion that any of the applicant's medical conditions outweighed the sexual harassment that was accepted as the basis for applicant's separation. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention, but determined an upgrade unwarranted at this time because of the applicant's blatant disregard to good order and discipline by repeated sexual harassment actions against numerous people warranted discharge from the military. (2) The applicant contends suffering from PTSD while deployed. The Board liberally considered the applicant's PTSD and other BH conditions, but determined that, through consult with the Agency Medical Advisor, the applicant's PTSD and other BH conditions were not mitigating for the repeated SH charges. (3) The applicant contends being extended twice past ETS date. The Board determined that a contract extension at the convenience of the government does not excuse sexually harassing other Soldiers. (4) The applicant contends having obtained employment at the United States Post office and earning a Master's Degree in Education. 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 determined that the applicant's significant and repeated sexual harassment charges led to a proper and equitable discharge. 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 Adjustment Disorder, PTSD, and TBI diagnoses did not mitigate the offenses of sexual harassment that were the basis for applicant's separation, 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 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 AR20210003098 1