1. Applicant’s Name: a. Application Date: 6 March 2020 b. Date Received: 9 June 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: 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 applicant was unaware the court-martial charges were dismissed, and the command failed to inform the applicant. An Article 15 appeal determined the punishment was legal. The command ignored statement from Soldiers who stated the applicant was not a part of their negative behavior. The results of the Article 15 led to depression that resulted in the loss of marriage and other health issues. The applicant volunteered as a coach and mentor and returned to school to further education. b. Board Type and Decision: In a records review conducted on 14 June 2023, 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, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 6 December 2006 c. Separation Facts: (1) Date of Notification of Intent to Separate: 1 June 2006 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant had numerous violations of Fort Leonard Wood Regulation 350-12 as recorded on the applicant’s Article 15. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 1 August 2006 (5) Administrative Separation Board: On 16 October 2006, the applicant waived consideration of the case by an administrative separation board contingent upon receiving a characterization of service of general (under honorable conditions). (6) Separation Decision Date / Characterization: 9 November 2006 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 March 2004 / 6 years b. Age at Enlistment / Education / GT Score: 27 / Master’s Degree / 103 c. Highest Grade Achieved / MOS / Total Service: E-6 / 88M20, Motor Transport Operator / 11 years, 4 months, 23 days d. Prior Service / Characterizations: 14 July 1995 – 4 March 2004 / HD e. Overseas Service / Combat Service: Korea, Balkans / None f. Awards and Decorations: ARCOM-3, AAM-2, AGCM-3, NDSM, AFEM, GWOTSM, KDSM, AFSM, NCOPDR-2, ASR, OSR, MOVSM, NATO MDL g. Performance Ratings: October 2001 – September 2002 / Among The Best October 2002 – May 2003 / Among The Best June 2003 – November 2003 / Among The Best December 2004 – July 2004 / Among The Best August 2004 – April 2005 / Among Th Best May 2005 – January 2006 / Marginal h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 17 January 2006, reflects the applicant committed sodomy with private B; committed sodomy with private G; maltreat private B, by forcing her to expose her breast while performing facing movement; maltreat private G by forcing her to expose her bare breast while performing facing movements; wrongfully commit an indecent act with private B by wrongfully having sexual intercourse with private B, while in the presence of private G; violate a lawful order by wrongfully engaging on conduct of a sexual nature with trainee private B and by wrongfully having personal conversations, unrelated to the training mission, with private B; on divers occasions between on or about 24 January 2005 and about 14 February 2005, violate a lawful general regulation by wrongfully soliciting and receiving money from trainee private G, by wrongfully engaging in conduct of a sexual nature with private G, and by wrongfully having personal conversations, unrelated to the training mission, with private G; on divers occasions between on or about 24 January 2005 and about 14 February 2005, violate a lawful general regulation by wrongfully soliciting and receiving money from trainee private D, by wrongfully engaging in conduct of a sexual nature with private D, and by wrongfully having personal conversations, unrelated to the training mission, with private D; on divers occasions between on or about 24 January 2005 and about 14 February 2005, violate a lawful general regulation by wrongfully soliciting and receiving money from 11 trainees and by wrongfully having personal conversations, unrelated to the training mission, with 11 trainees; and on divers occasions between on or about 24 January 2005 and about 14 February 2005, violate a lawful general regulation by wrongfully having personal conversations, unrelated to the training mission, with 5 trainees. The punishment consisted of reduction to sergeant/E-5; forfeiture of $1,248 per month for 2 months; extra duty for 45 days, suspended, to be automatically remitted if not vacated before 18 July 2006. A Report of Mental Status Evaluation (MSE), dated 25 May 2006, reflects the applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. The evaluation revealed no mental health conditions that would explain the applicant’s difficulties in performing to standard. General Court-Martial Order Number 3 dated 27 April 2006, which reflects the applicant was charged with 2 specification of Article 125; 3 specification of Article 93; one specification of Article 134; and 17 specifications of Article 92. The order reflects the applicant was arraigned and the proceedings were terminated on 27 December 2005, and the charges and specification were dismissed. The order does not state the reason for the dismissal. i. Behavioral Health Condition(s): (1) Applicant provided: The applicant provided a letter from the Department of Veteran Affairs (VA), dated 19 April 2007, which reflects, in part, the applicant has a service connection for generalized anxiety disorder with panic disorder agoraphobia, and obsessive- compulsive disorder (claimed as stress on medication) with a 50-percent disability rating which was increased to 70-percent effective 23 September 2019. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, DD Form 214, College Transcript, Record of Proceedings Under Article 15, UCMJ (with allied documents), General Court-Martial Order Number 3, dated 27 April 2006, VA letter, dated 19 April 2007, VA Rating Decision, dated 25 October 2019. 6. POST SERVICE ACCOMPLISHMENTS: The applicant volunteered as a coach and mentor and returned to school to further 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), dated 25 September 2019, 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, states 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. 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 Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends, in effect, the applicant was unaware the court-martial charges were dismissed, and the command failed to inform the applicant. The applicant was not separated due to a court-martial conviction, but under the provisions of Army Regulation 635-200, chapter 14-12c, due to misconduct (serious offense). The results of an Article 15 led to depression that resulted in the loss of marriage and other health issues. The applicant’s AMHRR is void of a metal health diagnosis. The record shows the applicant underwent a MSE on 25 May 2006, which reflects the applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. The MSE was considered by the separation authority. The applicant provided a letter from VA, dated 19 April 2007, which reflects, in part, the applicant has a service connection for generalized anxiety disorder with panic disorder agoraphobia, and obsessive-compulsive disorder (claimed as stress on medication) with a 50-percent disability rating which was increased to 70-percent effective 23 September 2019. The applicant volunteered as a coach and mentor and returned to school to further 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. 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 the applicant has the following potentially-mitigating diagnosis: Post-service, the applicant is 70% service connected for Generalized Anxiety Disorder (GAD). (2) Did the condition exist or experience occur during military service? No. There are no known behavioral health conditions in-service. Moreover, the applicant stated depressive symptoms started as a result of disciplinary actions not prior to. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the multiple misconduct serving as the basis for separation are not a progression or sequela of GAD. GAD does not impair an individual’s ability to know right from wrong and make conscious decisions understanding possible consequences. Moreover, the misconduct outlines purposeful, pre- meditated acts over a long period of time which supports intact cognitive processes. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the available evidence did not support a conclusion that the applicant’s Depression and Generalized Anxiety Disorder outweighed the medically unmitigated violations of training policy and numerous sexual offenses. b. Response to Contention(s): (1) The applicant was unaware the court-martial charges were dismissed and the command failed to inform the applicant. The Board considered this contention but determined that the dismissal of the criminal proceedings against the applicant did not preclude the applicant’s administrative separation. Therefore, a discharge upgrade is not warranted. (2) The results of an Article 15 led to depression that resulted in the loss of marriage and other health issues. The Board liberally considered this contention but determined that neither the applicant’s asserted Depression nor diagnosed Generalized Anxiety Disorder mitigate or excuse the applicant’s numerous violations of training policy and offenses of a sexual nature. Therefore, a discharge upgrade is not warranted. c. The Board determined that the discharge is, at this time, proper and equitable, considering 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 Depression and Generalized Anxiety Disorder did not outweigh the medically unmitigated violations of training policy and numerous offenses of a sexual nature. The Board also considered the applicant's contentions regarding the dismissal of court-martial charges and found that the totality of the applicant's record does not warrant a discharge upgrade. 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. Therefore, the applicant’s General discharge was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to Honorable discharge. (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 AR20210005334 1