1. Applicant’s Name: a. Application Date: 15 January 2019 b. Date Received: 28 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 misconduct was an isolated incident. The characterization of service was given after a botched investigation. The applicant had honorable service and received multiple awards. The applicant is unable to receive some veteran benefits. b. Board Type and Decision: In a records review conducted on 23 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: 2 October 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The applicant was informed of the following reasons: NIF / The unit commanders’ recommendation for separation cited the specific reason the applicant was recommended for separation was on 27 June 2018, an Article 15 having found the applicant guilty of 1 specification of article 93, of the UCMJ; cruelty and maltreatment, to wit; saying a deliberate offensive comment to a SPC, and 2 Specifications of Article 128, of the UCMJ; assault, to wit; unlawfully touching SGT R.C. and SGT R.R. on the thigh. (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 12 September 2018 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 September 2012 / 5 years (the applicant extended for 17 months 20 April 2015 for an assignment to Hawaii) b. Age at Enlistment / Education / GT Score: 20 / 1 year College / 124 c. Highest Grade Achieved / MOS / Total Service: E-5 / 31B10, Military Police / 6 years, 22 days d. Prior Service / Characterizations: RA, 11 September 2012 – 19 April 2015 / HD e. Overseas Service / Combat Service: Hawaii / None f. Awards and Decorations: AAM, AGCM, NDSM, GWOTSM, NCOPDR, ASR, MOVSM- 2 g. Performance Ratings: 1 February 2016 – 10 November 2016 / Qualified 11 November 2016 – 10 November 2017 / Qualified h. Disciplinary Action(s) / Evidentiary Record: FG Grade Article 15, dated 27 June 2018, reflects the applicant maltreated SPC B, by sexually harassing her by saying a deliberately offensive comment on or about 31 July 2017; on or about 13 February 2018 and between on or about 31 July 2017 and on or about 13 February 2018 unlawfully touched SGT O on the thigh; between on or about 1 January 2018 and on or about 16 February 2018, unlawfully touch SGT R on the thigh. The punishment consisted of reduction to specialist/E-4; forfeiture of $1,245 pay, suspended, to be automatically remitted if not vacated on or before 27 December 2018; and extra duty for 45 days. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: The applicant provides a letter from the Department of Veteran Affairs (VA), dated 19 December 2019, which reflects, in part, the applicant has a combined service-connected evaluation of 90 percent. The letter reflects the applicant’s character of service for the period of 11 September 2013 – 2 October 2018 is honorable. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; VA Letter, dated 19 December 2019; AAM Certificate; MOVSM Certificate-2; DD Form 214 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), 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’s service AMHRR is void of the complete facts and circumstances concerning the events which led to the discharge from the Army. The applicant’s record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty). The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, paragraph 14- 12c, by reason of Misconduct (Serious Offense), with a characterization of service of General (Under Honorable Conditions). The applicant contends the misconduct was an isolated incident. Army Regulation 635-200, paragraph 3-5, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends the characterization of service was given after a botched investigation. The applicant’s available AHMRR is void of evidence pertaining to an investigation. The applicant states there was honorable service and received multiple awards. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant is unable to receive some veteran benefits. Eligibility for veteran’s benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill 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. If the applicant desires a personal appearance hearing, it is the applicant responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration because they are not available in the official record. 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 diagnoses: the applicant was diagnosed in-service with an Adjustment Disorder, Anxiety Disorder, MDD, and Dysthymic Disorder with likely Dependent Personality Disorder. Post-service, applicant is service connected for MDD secondary to dislike of the Army and MOS. (2) Did the condition exist or experience occur during military service? Yes. The applicant was diagnosed in-service with an Adjustment Disorder, Anxiety Disorder, MDD, and Dysthymic Disorder with likely Dependent Personality Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that offensive statements and touching are not a progression or sequela of the applicant's in-service and service-connected diagnoses of Adjustment Disorder, Anxiety Disorder, MDD, and Dysthymic Disorder with likely Dependent Personality Disorder. (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 Adjustment Disorder, Anxiety Disorder, MDD, and Dysthymic Disorder with likely Dependent Personality Disorder outweighed the basis for applicant’s separation – offensive statements and unlawful touching – for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends the misconduct was an isolated incident. The Board considered this contention non-persuasive during its deliberations, based on the nature and severity of the multiple instances of misconduct found in the applicant’s disciplinary record. After a review of the totality of the evidence, the Board found insufficient mitigating factors such that warrant an upgrade of the applicant’s discharge. Thus, the discharge is proper and equitable. (2) The applicant had Honorable service and received multiple awards. The Board considered the applicant’s five years and seven months of service including numerous awards received by the applicant but determined that the prior honorable service and merits did not mitigate the applicant’s misconduct. (3) The applicant contends the characterization of service was given after a botched investigation. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention that the discharge was improper or inequitable. In light of the current evidence of record, the Board determined the applicant’s discharge was appropriate and no proof of a botched investigation was provided. 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. 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. 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 diagnosis of Adjustment Disorder, Anxiety Disorder, MDD, and Dysthymic Disorder with likely Dependent Personality Disorder, did not excuse or mitigate offensive statements and unlawful touching. The Board further considered the applicant’s contentions of impropriety and inequity and determined there was insufficient evidence of any arbitrary or capricious action taken by the Command. Ultimately, 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. (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 AR20210005428 1