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. The applicant, through counsel, requests an upgrade to honorable. a. Applicant’s Request & Issues: The applicant seeks relief contending, in effect, this derogatory information be removed from the record. The applicant requests the appeal be given the utmost scrutiny. The success of the appeal and future actions by the Army and the Board for Corrections of Army Records will have a significant impact on the applicant’s ability to receive proper benefits and recognition. The applicant will continue to fight derogatory information up through the Secretary of the Army. The applicant contends the underlying basis of the applicant’s separation was procedurally defective at the time of the discharge. The adverse action, to include the administrative discharge, was unfair at the time; and the other than honorable discharge, is inequitable now. The applicant contends being diagnosed with PTSD and TBI. The service member contends never being offered or provided with rehabilitation. The applicant contends being an outstanding Soldier and was misrepresented by a civilian attorney who was high on cocaine during the trial and was later convicted for cocaine possession. The applicant respectfully requests the Board upgrade the discharge to honorable, change the narrative reason to “For the Convenience of the Government,” and change RE Code to 1. The applicant’s other than honorable discharge is inequitable and has served its purpose. b. Board Type & Decision: In a records review conducted on 20 May 2022, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board’s decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Civil Conviction) / AR 635-200, Chapter 14, Sec II / JKB / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 22 February 2006 c. Separation Facts: (1) Date of Notification of Intent to Separate: 22 October 2003 (2) Basis for Separation: The applicant was informed of the following reasons: Conviction by a civil court for indecent liberties with a child and received a sentence of 13 months. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 27 October 2003 (5) Administrative Separation Board: On 17 December 2003, the applicant was notified to appear before an administrative separation board and advised of rights. On 5 January 2004, the administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions. On 5 January 2004, the separation authority approved the findings and recommendations of the administrative separation board. (6) Separation Decision Date / Characterization: 8 March 2005 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 December 1998 / Indefinite b. Age at Enlistment / Education / GT Score: 36 / GED / 117 c. Highest Grade Achieved / MOS / Total Service: E-7 / 18D1V 2B, Special Forces Medical Sergeant / 22 years, 5 months, 20 days d. Prior Service / Characterizations: USAR,15 July 1982 – 30 September 1982 / NA IADT, 1 October 1982 – 11 March 1983 / HD USAR, 12 March 1983 – 3 October 1983 / NA RA, 4 October 1983 – 17 September 1987 / HD RA, 18 September 1987 – 18 March 1993 / HD RA, 19 March 1993 – 18 December 1998 / HD e. Overseas Service / Combat Service: Panama / Kosovo (13 October 1998 – 19 December 1998) f. Awards and Decorations: ARCOM-3, JSAM-3, AAM-5, AGCM-5, NDSM-2, KCM, NCOPDR-3, ASR, OSR, NATOMDL g. Performance Ratings: December 1998 – November 1999 / Among The Best December 1999 – November 2000 / Among The Best December 2000 – November 2001 / Fully Capable December 2001 – November 2002 / Among The Best h. Disciplinary Action(s) / Evidentiary Record: CID Repot Final, dated 30 January 2002, reflects the investigation established probable cause to believe the applicant committed the offense of Indecent Assault on a child when the applicant digitally penetrated Miss A., vagina while asleep at the applicant’s residence in Fayetteville, NC. FG Article 15, dated 21 February 2003, for disobeying a lawful order on or about 10 February 2003. The punishment consisted of extra duty for 14 days (suspended). Two Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY)” to “Confined by Military Authorities (CMA)” effective 2 October 2003; and, From “Confined by Military Authorities (CMA)” to “Present for Duty (PDY),” effective 20 November 2004. i. Lost Time / Mode of Return: 1 year, 1 month, 17 days (Confined by Civil Authorities, 2 October 2003 – 19 November 2004) / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; legal brief, self-authored statement; military records and civilian 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) Section II, Paragraph 14-5, prescribes conditions which subject a Soldier to discharge and reduction in grade. A Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present. This includes similar adjudication in juvenile proceedings: 1) A punitive discharge authorized for the same or a closely related offense under the MCM 2002, as amended; 2) The sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. Adjudication in juvenile proceedings includes adjudication as a juvenile delinquent, wayward minor, or youthful offender; Initiation of separation action is not mandatory. Although the conditions established in a (1) or (2), above, are present, the immediate commander must also consider whether the specific circumstances of the offense warrant separation. If the immediate commander initiates separation action, the case will be processed through the chain of command to the separation authority for appropriate action. A Soldier convicted by a civil court or adjudged a juvenile offender by a civil court will be reduced or considered for reduction. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKB” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, section II, misconduct (civil conviction). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. Eligibility: Ineligible unless a waiver is granted. 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. Army Regulation 635-200, in pertinent part, stipulates a Soldier may be separated when initially convicted by civil authorities, or when action is taken tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for six months or more, without regard to suspension or probation. At the time of the applicant’s discharge, the applicant had been confined by civilian authorities for 1 year, 1 month and 17 days. The applicant contends the narrative reason for the discharge needs to be changed. The applicant was separated under the provisions of Chapter 14, Section II, AR 635-200 with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Misconduct (Civil Conviction),” and the separation code is “JKB.” Army Regulation 635-8, Separation Processing and Documents, governs preparation of the DD Form 214 and dictates 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 being diagnosed with PTSD and TBI. The applicant’s AMHRR contains no documentation of PTSD or TBI diagnosis. The applicant did not submit any evidence to support the contention the discharge resulted from any medical condition. The AMHRR is void of a mental status evaluation. The applicant contends the underlying basis of the applicant’s separation was procedurally defective at the time of the discharge. The adverse action, to include the administrative discharge, was unfair at the time; and the other than honorable discharge, is inequitable now. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends never being offered or provided with rehabilitation. The evidence of record shows the command attempted to assist the applicant in performing and conducting to Army standards by providing counseling and the imposition of non-judicial punishment. 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. The applicant contends good service, including a deployment. The applicant contends the RE code should be a 1. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, the applicant was appropriately assigned an RE code of “4.” An RE code of “4” cannot be waived, and the applicant is no longer eligible for reenlistment. 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 DoD and VA medical records, applicant submissions and third party statements, and found the applicant’s self- asserted PTSD, TBI and Depression could potentially mitigate the applicant’s discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant self-asserts PTSD, TBI, and Depression existed during service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. After applying liberal consideration, the Board's Medical Advisor determined that the applicant’s self-asserted PTSD, TBI, and Depression do not mitigate the applicant’s basis of separation – civil conviction for taking liberties with a child as there are no natural sequalae between the applicant’s PTSD, TBI, and Depression and the applicant’s basis of separation – civil conviction for taking indecent liberties with a child. (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 applicant’s self-asserted PTSD, TBI, and Depression do not outweigh the applicant’s unmitigated basis of separation – civil conviction for taking liberties with a child. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs to be changed. The Board considered this contention and determined the applicant’s narrative reason is appropriate as the applicant’s self-asserted PTSD, TBI, and Depression do not outweigh the applicant’s unmitigated basis of separation – civil conviction for taking liberties with a child. (2) The applicant contends being diagnosed with PTSD and TBI. The Board liberally considered this contention and determined the applicant’s self-asserted PTSD, TBI, and Depression do not outweigh the applicant’s unmitigated basis of separation – civil conviction for taking liberties with a child. (3) The applicant contends the underlying basis of the applicant’s separation was procedurally defective at the time of the discharge. The applicant also contends that the adverse action, to include the administrative discharge, was unfair at the time; and the other than honorable discharge, is inequitable now. The Board considered these contentions and determined, after finding no evidence of the Command acting in an arbitrary or capricious manner or procedural defects, the applicant’s assertion alone did not warrant an upgrade due to the severity of the applicant’s basis for separation - civil conviction for taking liberties with a child. (4) The applicant contends never being offered or provided with rehabilitation. The Board considered this contention and determined that there is evidence that supports the conclusion that the command attempted to assist the applicant in performing and conducting to Army standards by providing counseling and the imposition of non-judicial punishment. (5) 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. (6) The applicant contends good service, including a deployment. The Board considered this contention 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 taking indecent liberties with a child, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (7) The applicant contends the RE code should be a 1. The Board voted after considering this contention and determined the applicant was appropriately assigned an RE code of “4.” c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant’s asserted PTSD, TBI and depression did not outweigh the applicant’s basis for separation – conviction for taking indecent liberties with a child. The Board also considered the applicant’s contentions of impropriety, including procedural defects with the applicant’s separation and the and the command’s failure to provide rehabilitation and found that there was no evidence of arbitrary or capricious actions warranting a discharge upgrade. Finally, the Board considered the applicant’s contentions of equity, including good service and a combat tour and determined that the totality of the applicant’s record does not warrant a discharge upgrade. Therefore, the applicant’s UOTH was proper and equitable as the applicant’s misconduct fell below that level of satisfactory service warranting an upgrade to GD or meritorious service warranted for an upgrade to HD. 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, and 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 AR20210003163 1