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. Incident occurred in April 2016, but the applicant was not separated until September 2018. Between the time of the incident and the applicant's separation, the applicant was placed in an E- 7/SFC position, where applicant exceeded all expectations. The applicant mentored several Soldiers who attended and completed the Warrior Leadership Course and Advanced Leaders Course for 19K. Since the incident, the applicant was a top-notch leader in the Army, and after the discharge, the applicant's motivation and care for the Army/Fort Hood dwindled tremendously. The applicant states to go from an NCO who was top 3 percent in the battalion to having a bad incident where the applicant's spouse was cheating and when the applicant caught them, the applicant reacted wrong. The applicant's punishment was a general discharge, but the guy who knew the applicant's wife was married, was promoted to E-8/MSG. The applicant's actions ended the applicant's career, which the applicant had begun 16 years earlier. The applicant fully regrets those actions because it brought a huge, undeniable distraction and credibility to the applicant, who served 16 years with six combat deployments. In a records review conducted on 13 January 2022, and by a 3 - 2 vote, the Board determined the discharge is inequitable based on the applicant's length of service, to include combat service, the circumstances surrounding the discharge (OBH and PTSD diagnoses), prior honorable service, and post-service accomplishments. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. 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: 4 September 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: On 6 June 2018, the separation authority approved the applicant's separation under the provisions of AR 635-200, Chapter 14-12c, Commission of a Serious Offense. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 October 2014 / Indefinite b. Age at Enlistment / Education / GT Score: 30 / Associate's Degree / 90 c. Highest Grade Achieved / MOS / Total Service: E-6 / 19K38, 8R M1 Armor Crewman / 16 years, 2 months, 5 days d. Prior Service / Characterizations: RA, 19 June 2002 - 10 December 2005 / HD RA, 11 December 2005 - 31 January 2008 / HD RA, 1 February 2008 - 16 May 2012 / HD RA, 17 May 2012 - 13 October 2014 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (10 July 2013 - 23 March 2014); Iraq (22 November 2002 - 12 August 2003; 29 January 2005 - 28 February 2006; 13 January 2007 - 29 March 2008; 21 February 2009 - 19 May 2009; 20 May 2011 - 21 November 2011) f. Awards and Decorations: ICM-5CS; ARCOM-5; JSAM; PUC; VUA; AGCM-5; NDSM; GWOTSM; ACM-CS; NCOPDR-2; ASR; OSR-3; USAF ESR; NATOMDL; CAB g. Performance Ratings: 28 October 2013 - 27 February 2014 / Among The Best 27 October 2014 - 27 October 2015 / Fully Capable 31 October 2015 - 31 October 2016 / Qualified 1 November 2016 - 31 October 2017 / Qualified 31 October 2017 - 10 August 2018 / Qualified h. Disciplinary Action(s) / Evidentiary Record: General Officer Memorandum of Reprimand, dated 16 November 2016, reflects the applicant on 15 April 2016, was apprehended by the Killeen Police when the applicant agreed to pay an undercover police officer money for sexual intercourse in violation of Texas Penal Code, section 43.02(c). On 1 July 2016, the applicant pled no contest to this misdemeanor charge in Bell County Court. Service School Academic Evaluation Report, dated 14 September 2015, reflects the applicant failed to achieve course standards for Maneuver Senior Leader Course by failing to achieve a passing score of 4 out of 5 point during Land Navigation performance exam on 9 September 2015. On the applicant's Land Navigation retest the applicant failed to achieve 4 out 5 points, the applicant scored 60 percent. i. Lost Time / Mode of Return: 11 days (NIF, 24 August 2018 - 4 September 2018) / NIF j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states he is receiving proper care and treatment for his PTSD at the VA. 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 14-12a addresses minor disciplinary infractions, defined as a pattern of misconduct, consisting solely of minor military disciplinary infractions. (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 FACTS: 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 (2), by reason of Misconduct (Drug Abuse), with a characterization of service of general (under honorable conditions). The applicant contends suffering from PTSD, which affected the applicant's behavior and led to the discharge. The applicant's AMHRR contains no documentation of PTSD 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 (MSE). ARBA sent a letter to the applicant at the address in the application on 23 July 2019, requesting documentation to support a PTSD diagnosis but received no response from the applicant. The applicant contends the other Soldier, involved in the incident that lead to applicant's separation, was promoted and was not discharged. Applicable regulations state each case must be decided on an individual basis, considering the unique facts and circumstances of the particular case. The applicant contends good service, including a six combat tours. The Board considers service accomplishments and the quality of service during deliberation. 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. The applicant was diagnosed in service with PTSD and Depression and is service connected by the VA for combat-related PTSD that could mitigate applicant's basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The applicant was diagnosed in service with PTSD and Depression and is service connected by the VA for combat-related PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor opined that although the applicant's basis of separation is not contained in the file, based on several documents and character letters in applicant's file, the applicant's basis for separation was likely due to soliciting a prostitute, and applicant's PTSD does not mitigate applicant's solicitation because the sequelae of applicant's PTSD are not associated with soliciting a prostitute, and therefore could not mitigate solicitation. (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the applicant's solicitation of a prostitute is a conscious act and outweighed the applicant's PTSD for the reasons listed in (3) above. Even though applicant's PTSD did not mitigate the accepted reason for discharge (solicitation of a prostitute), the Board's majority determined that applicant's length of service (prior Honorable discharges), combat service (over 50 total months in Iraq & Afghanistan), quality of service (numerous awards), and the totality of circumstances surrounding applicant's discharge make the current characterization of service inequitable. b. Response to Contentions: (1) The applicant contends he was suffering from PTSD, which affected his behavior and led to his discharge. The Board's Medical Advisor confirmed the applicant was diagnosed in service with PTSD and Depression and is service connected by the VA for combat-related PTSD and considered this contention during its deliberations. (2) The applicant contends the other Soldier, who was involved in the incident that lead to applicant's discharge, was promoted and was not discharged. The Board considered applicant's contention, however, the Board focused on evidence in applicant's service record to support a change to applicant's characterization of service based on inequity. (3) The applicant contends good service, including a six combat tours. The Board considered applicant's quality of service during its deliberations. c. The Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, totality of the circumstances surrounding the discharge, and post-service accomplishments. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's length of service (prior Honorable discharges), combat service (over 50 total months in Iraq & Afghanistan), quality of service (numerous awards), and the totality of circumstances surrounding applicant's discharge make the current characterization of service inequitable. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (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: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change a. Change Authority to: AR 635-200, paragraph 14-12a 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 AR20210003260 1