1. Applicant's Name: a. Application Date: 5 January 2021 b. Date Received: 19 January 2021 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to honorable, a change to his narrative reason, and a change to his reentry eligibility (RE) code. The applicant seeks relief contending, in effect, he does not feel his discharge was validated when given upon his separation. He has an honorable discharge from the Marine Corps for 8 years of service. He is a combat veteran who has suffered many long-term injuries due to deployments, both physical and mental. He was an outstanding Marine as he was made Platoon Sergeant of the Marines who protected the President of the United States while serving his time at the White House. Upon switching services to the Army, the legal actions taken against him, were investigated and conducted after he had submitted a Commanding General (CG) complaint regarding sexual harassment of his junior Soldier. His former First Sergeant crossed many lines when interacting with this female Soldier that made her uncomfortable so he submitted a complaint. After he had submitted this complaint, he found out that an investigation had been opened on him. It included many accusations by the First Sergeant that he later admitted to a legal representative of not being true. It felt like retribution for the complaint he submitted on behalf of his junior Soldier. Not only was he falsely accused for acts he did not commit. many NCO's wrote false sworn statements against him, he believes he was treated poorly the duration of his service in the Army. He found out over a year later that his CG complaint was removed from the filing system and hide in a different location, his leadership slandered his name in front of every Soldier at his Unit, he was physically assaulted during his phase1/2 physical by the medical officer, he was constantly denied medical procedures for service related injuries that required surgery, the summary court martial officer admitted to a representative at the CG headquarters that he took an unlawful order from his Battalion Commander regarding his punishment, etc. Through all of this, he suffered from major depression and anxiety and still have lasting effects to this day. Up to the CG complaint he had no negative NCOER's, he was recommended to go to multiple promotion boards and he was always the "go-to" NCO to get tasks completed. He does not feel the discharge he received was warranted when there were many Soldiers in the same unit who were discharged with general (under honorable conditions) discharges for being kicked out for multiple failed drug tests. He thinks that he was slandered to discredit his character in regards to the CG complaint he submitted against his former First Sergeant. This is why he feels strongly, that he was a victim of reprisal. In a records review conducted on 1 December 2021, 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-4 / Under Other Than Honorable Conditions b. Date of Discharge: 13 February 2020 c. Separation Facts: (1) Date of Notification of Intent to Separate: 14 November 2019 (2) Basis for Separation: The applicant was informed of the following reasons: for between on or about 1 September 2018 and 30 September 2018, he made a false official statement to First Sergeant T.B.E., and Between on or about 1 August 2017 and on or about 31 December 2018, he wrongfully had sexual intercourse with a Sergeant, a woman not his wife. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: See Offer to Plead Guilty (5) Administrative Separation Board: As a part of his offer to plead guilty, the applicant unconditionally waived any right he had to an administrative separation board based on the misconduct to which he pleaded guilty to as indicated in paragraph 1 of his offer to plead guilty, even if he is to be separated under other than honorable conditions. (6) Separation Decision Date / Characterization: 30 January 2020 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 June 2017 / 3 years, 11 months b. Age at Enlistment / Education / GT Score: 27 / HS Graduate / 101 c. Highest Grade Achieved / MOS / Total Service: E-5 / 13F20, Fire Support Specialist / 10 years, 6 months, 7 days d. Prior Service / Characterizations: March 2009 to August 2016 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (11 February 2012 to 30 July 2012) f. Awards and Decorations: NMUC; AGCM, MCGCM; NDSM, ACM-CS, GWOTSM, NOPDR, ASR, OSR, NATOMDL g. Performance Ratings: 21 September 2009 to 29 January 2020, Qualified h. Disciplinary Action(s) / Evidentiary Record: AR 15-6 Investigation, dated 27 November 2018 and 14 December 2018 "Appointment, Findings and Recommendation" reference the alleged misconduct of the applicant, i.e., did he falsify or alter his DD Form 214 relating to his release from the United States Marine Corps, at a minimum, address whether he falsified attendance of a Sergeant's Course as well as his time in service; did he falsify a sales receipt and / or lie about his vehicle breaking down when explaining why he missed movement to Pinion Canyon on or about September 2018; and did the applicant engage in an inappropriate relationship with SGT R.S. Offer to Plead Guilty Pretrial Agreement, dated 17 September 2019. Petition for Dissolution of Marriage / Divorce, dated 21 March 2019. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 7 November 2019, indicates from a psychological perspective the applicant met medical retention standards in accordance with AR 40-501, Chapter 3, he did not appear to be suffering from psychological disorders that required disposition through medical channels, and the applicant was cognitively and psychologically responsible for his behavior. It was also noted that the applicant could understand and participate in administrative proceedings and appreciated the difference between right and wrong. Department of Veterans Affairs documents submitted by the applicant indicate the applicant has been awarded 80 percent service connected disability; (service connection for other specified trauma and stressor related disorder (claimed as post-traumatic stress disorder PTSD, sleep issues, stress, anxiety, and memory loss) is granted with an evaluation of 30 percent effective 14 February 2020. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; documents from the Department of Veterans Affairs reference characterizations, benefits information, disability rating upgrade; investigation and false statements; evidence not shown in investigation; character references / letter of support; Joint Services Transcript; CSM letter of recommendation; noncommissioned officer report (NCO) copy of Marine Corps 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 Service-member discharged from active military service within 15 years of the Service-member'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) 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. e. 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-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 waiverable. Eligibility: Ineligible unless a waiver is granted. RE-4 Applies to: Person separated from last period of service with a nonwaiverable 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. f. 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). 8. DISCUSSION 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, a change to his narrative reason, and a change to his reentry eligibility (RE) code. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of record indicates that separation action was initiated against the applicant for between on or about 1 September 2018 and 30 September 2018, he made a false official statement to a First Sergeant, and between on or about 1 August 2017 and on or about 31 December 2018, he wrongfully had sexual intercourse with a Sergeant, a woman not his wife. The AMHRR shows the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, 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 (Serious Offense)," and the separation code is "JKQ." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The appropriate RE code is 3. There is no provision for any other reason to be entered under this regulation. The applicant seeks relief contending he does not feel his discharge was validated when given upon his separation. He has an honorable discharge from the Marine Corps for 8 years of service. He is a combat veteran who has suffered many long-term injuries due to deployments, both physical and mental. He was an outstanding Marine as he was made Platoon Sergeant of the Marines who protected the President of the United States while serving his time at the White House. Upon switching services to the Army, the legal actions taken against him, were investigated and conducted after he had submitted a Commanding General (CG) complaint regarding sexual harassment of his junior Soldier. His former First Sergeant crossed many lines when interacting with this female Soldier that made her uncomfortable so he submitted a complaint. After he had submitted this complaint, he found out that an investigation had been opened on him. It included many accusations by the First Sergeant that he later admitted to a legal representative of not being true. It felt like retribution for the complaint he submitted on behalf of his junior Soldier. Not only was he falsely accused for acts he did not commit. many NCO's wrote false sworn statements against him, he believes he was treated poorly the duration of his service in the Army. He found out over a year later that his CG complaint was removed from the filing system and hide in a different location, his leadership slandered his name in front of every Soldier at his Unit, he was physically assaulted during his phase1/2 physical by the medical officer, he was constantly denied medical procedures for service related injuries that required surgery, the summary court martial officer admitted to a representative at the CG headquarters that he took an unlawful order from his Battalion Commander regarding his punishment, etc. Through all of this, he suffered from major depression and anxiety and still have lasting effects to this day. Up to the CG complaint he had no negative NCOER's, he was recommended to go to multiple promotion boards and he was always the "go-to" NCO to get tasks completed. He does not feel the discharge he received was warranted when there were many Soldiers in the same unit who were discharged with general (under honorable conditions) discharges for being kicked out for multiple failed drug tests. He thinks that he was slandered to discredit his character in regards to the CG complaint he submitted against his former First Sergeant. This is why he feels strongly, that he was a victim of reprisal. The applicant's contentions were noted; the service record indicates the applicant committed several discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. Evidence submitted by the applicant from the Department of Veterans indicate the applicant has been awarded 80 percent service connected disability; (service connection for other specified trauma and stressor related disorder (claimed as post-traumatic stress disorder PTSD, sleep issues, stress, anxiety, and memory loss) is granted with an evaluation of 30 percent effective 14 February 2020. It should be noted the Report of Mental Status Evaluation, dated 7 November 2019, indicates from a psychological perspective the applicant met medical retention standards in accordance with AR 40-501, Chapter 3, he did not appear to be suffering from psychological disorders that required disposition through medical channels, and the applicant was cognitively and psychologically responsible for his behavior. It was also noted that the applicant could understand and participate in administrative proceedings and appreciated the difference between right and wrong. Also the unit commander noted in his recommendation memorandum, dated 21 November 2019, that the applicant had not reported suffering from either Post Traumatic Stress Disorder or Traumatic Brain Injury as a result of deployment overseas in support of a contingency operation or a sexual assault within the last 24 months The applicant does not feel the discharge he received was warranted when there were many Soldiers in the same unit who were discharged with general (under honorable conditions) discharges for being kicked out for multiple failed drug tests. However, the method in which another Soldier's case was handled is not relevant to the applicant's case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case at the time of discharge. 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. While in service, the applicant was diagnosed with the following potentially mitigating BH conditions: Adjustment Disorder, Acute Stress Reaction, Major Depressive Disorder (MDD), and PTSD. Post-service, he is 70% service connected for PTSD and also diagnosed with mild TBI by the VA. Both of these conditions are potentially mitigating. (2) Did the condition exist or experience occur during military service? Yes. Adjustment Disorder, Acute Stress Reaction, MDD, and PTSD. Post-service, the applicant has been 70% service connected by the VA for PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? No. While the applicant has been diagnosed with PTSD, MDD, mild TBI, Acute Stress Reaction and Adjustment Disorder, these diagnoses do not mitigate or excuse the acts of committing adultery or making false official statements. Specifically, the actions involved in maintaining an inappropriate relationship involve planning and organization; the actions involved in making false official statements involve intent to conceal. In short, the applicant's misconduct was conscious, purposeful, deliberate, and performed to obtain specific goals. Such behavior indicates that the applicant had the ability to understand the difference between right and wrong and act in accordance with the right. Therefore, while Liberal Consideration was applied, the applicant's misconduct is neither mitigated nor excused. (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 acts of committing adultery or making false official statements outweighed the applicant's Adjustment Disorder, Acute Stress Reaction, MDD, and PTSD for the reasons listed in (3) above. b. Response to Contention(s): (1) The applicant seeks relief, contending he does not feel his discharge was validated when given upon his separation. He believes the legal actions taken against him were investigated and conducted after he had submitted a Commanding General (CG) complaint regarding sexual harassment of his junior Soldier. The ADRB carefully considered the applicant's contentions. The applicant's discharge file indicates the applicant committed several discrediting offenses. The ADRB determined that taken together, these constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. (2) The applicant contends his leadership slandered his name in front of every Soldier at his unit, he was physically assaulted during his phase 1/2 physical by the medical officer, was constantly denied medical procedures for service related injuries that required surgery, the summary court-martial officer admitted to a representative at the CG headquarters that he took an unlawful order from his Battalion Commander regarding his punishment, etc. This is why he feels strongly that he was a victim of reprisal. The Board carefully considered this contention, but determined that there is no indication or evidence of arbitrary or capricious actions by the command. 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 contentions 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 PTSD, MDD, mild TBI, Acute Stress Reaction and Adjustment Disorder did not mitigate the offenses of making false official statements, falsified documents, and wrongful sexual intercourse with a Sergeant, a woman not his wife. The applicant did not supply sufficient independent corroborating evidence to support contentions, and 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 MDD - Major Depressive Disorder 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 AR20210006322 2