1. Applicant’s Name: a. Application Date: 24 August 2020 b. Date Received: 1 September 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 under other than honorable conditions. The applicant requests an upgrade to honorable. b. The applicant states, in effect that they did not receive adequate counseling for their alcohol addiction. c. Board Type and Decision: In a records review conducted on 25 October 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE- 3 / UOTHC b. Date of Discharge: 28 June 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 25 March 2019 (2) Basis for Separation: committed lewd acts upon a child under the age of 16 (3) Recommended Characterization: UOTHC (4) Legal Consultation Date: 9 April 2019 (5) Administrative Separation Board: The applicant voluntarily waived the right to have their case considered by the administrative separation board on 3 June 2019. (6) Separation Decision Date / Characterization: 12 June 2019 / UOTHC 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 November 2013 / Indefinite b. Age at Enlistment / Education / GT Score: 22 / Bachelor’s Degree / 125 c. Highest Grade Achieved / MOS / Total Service: Staff Sergeant (E-6) / 35G10 1K Geospatial Intelligence Imagery Analyst / 15 years, 7 months, 16 days d. Prior Service / Characterizations: RA 13 November 2003 – 17 November 2013 / Honorable e. Overseas Service / Combat Service: South Korea, Japan, Germany / Iraq (10 August 2006 – 25 October 2007) f. Awards and Decorations: JSCM, ARCOM-2, JSAM, AAM-2, NIMUC, AGCM-5, NDSM, ICM-CS, GWTSM, KDSM, HSM, NOPDR, ASR, OSR-5, COA-2 g. Performance Ratings: 31 March 2014 – 31 December 2014 / Successful 11 September 2015 – 15 April 2016 / Met Standard 16 April 2016 – 15 April 2017 / Met Standard 16 April 2017 – 11 December 2017 / Met Standard 23 May 2018 – 16 May 2019 / Not Qualified h. Disciplinary Action(s) / Evidentiary Record: (1) An Enlistment/Reenlistment Document signed 18 November 2013 provides the applicant reenlisted indefinitely at the rank of Staff Sergeant (E-6); third reenlistment. (2) A Rights Warning Procedure/Waiver Certificate provides that on 22 May 2018 the applicant was suspected of sexual abuse of a child; they requested a lawyer. (3) A CID report provides that a student told a school counselor the applicant: made them sit on their lap and kissed them on the lips, the child was supposed to walk to school with a first grader and was held at “a” neighbor’s house. The told child to come inside [applicant’s] house and got angry and said to the child, their mom made a big mistake sending them over to the applicant’s house. The applicant pushed the child onto the arm of the brown chair where “applicant” was siting then pulled the child onto their [applicant’s] lap and made the child watch a video. The applicant restated that the child’s mother made a huge mistake and kissed the child on the forehead then grabbed the child by the chin and back of head and kissed the child’s lips. The applicant’s spouse described applicant as “being drunk and claiming __ does not remember __ actions when intoxicated and claims to have untreated PTSD and refused to seek treatment.” (4) A Developmental Counseling Form dated 22 May 2018 provides the applicant was counseled to inform them that they were being flagged due to a law enforcement investigation. The applicant provided they wanted to see behavioral health; appointment was scheduled for 29 May 2018. (5) A memorandum, CID Office, Fort Huachuca, Arizona subject: Law Enforcement Report – Final dated 25 June 2018 provides that the Office of the Staff Judge Advocate, opined there was probable cause to believe the applicant committed the offense of sexual abuse of child. (6) A Developmental Counseling Form dated 9 January 2019, provides the applicant was informed that the CID investigation was closed, and they were being recommended for legal action under the UCMJ for administrative separated; flagged for adverse action and involuntary separation. (7) A Report of Mental Status Evaluation document dated 11 January 2019, provides that the applicant received a mental health evaluation that psychologically cleared them for administrative separations. Reported that the applicant had no current BH diagnosis and no recommendation for a SUD (substance use disorder) evaluation. (8) A Report of Medical Assessment document dated 23 January 2019, provides that the applicant received a separation medical assessment/examination. The medical examination is void of an examinee signature or final disposition of assessment that identifies whether the applicant is qualified for continued separation. (9) A Record of Proceedings UCMJ document, dated 21 February 2019 provides the applicant received a NJP for violating two specifications of violating Article 120b and one specification of violating Article 134 of the UCMJ. Punishment consisted of reduction in rank to sergeant (E-5) and extra duty for 45 days. (10) A memorandum, Intelligence & Electronic Warfare Test Directorate, Fort Huachuca, Arizona subject: Separation under AR 635-200, Chapter 14-12c, dated 25 March 2019 provides the applicant’s immediate commander notified them of their intent to separate them for commission of a serious offense with a recommended characterization of service of under other than honorable conditions. On 25 March 2019, the applicant acknowledged the commander’s notification and basis for separation, their available rights, to include the right to consult with counsel prior to submitting their election of rights. (11) On 09 April 2019, the applicant consulted with counsel and requested consideration of their case by an administrative separation board. They requested a conditional waiver, and voluntarily waived the administrative separation board contingent upon them receiving a General (under honorable conditions) characterization of service. (12) On 11 Apr 2019, the applicant submitted a statement on their behalf, requesting leniency; they accepted responsibility of their decision to drink alcohol and although they did not enroll in the ASAP program, they did voluntarily seek substance abuse counseling and successfully completed the smart recovery program. (13) On 21 May 2019 the applicant received a notification to appear before an Administrative separation board, the acknowledged receipt of the notification on 22 May 2019. (14) On 3 June 2019 they consulted with counsel and voluntarily waived the right to have their case considered by an administrative separation board and potentially receive an Other Than Honorable Characterization of service, indicating they understood the prejudices that may occur in receiving the UOTHC characterization of service and elected to not submit a statement(s) on their behalf. (15) On 12 June 2019 the appropriate authority reviewed the applicant’s separation packet and conditional waiver and directed the applicant be separated with a under other than honorable conditions characterization of service. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None, However, on 18 June 2021, the Army Review Boards Agency requested the applicant to provide a copy of their medical documents to support their mental health issue of alcohol addiction. As of date, the applicant has not submitted the requested documents. 5. APPLICANT-PROVIDED EVIDENCE: A DD Form 293 (Discharge Review) application. 6. POST SERVICE ACCOMPLISHMENTS: None submitted in support of 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 provides the authorized types of characterization of service or description of separation. (1) 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. (2) 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. (3) An 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. (4) Except as otherwise indicated in this regulation, commanders must make maximum use of counseling and rehabilitation before determining that a Soldier has no potential for further useful service and, therefore, should be separated. In this regard, commanders will ensure that adequate counseling and rehabilitative measures are taken before initiating separation proceedings for the following reasons. Rehabilitative requirements are not required for individuals separated under Chapter 14-12c. * Involuntary separation due to parenthood * Personality disorder * Other designated physical or mental conditions * Entry-level performance and conduct * Unsatisfactory performance * Minor disciplinary infractions or a pattern of misconduct * Failure to meet body fat standards (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. 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. A soldier subject to this discharge under this regulation will be considered and processed for discharge even though he/she has filed an appeal or has stated his/her intention to do so. 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. (6) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army’s best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. e. Army Regulation 600-85 (Army Substance Abuse Program (ASAP)) governs the program and identifies Army policy on alcohol and other drug abuse, and responsibilities. The ASAP is a command program that emphasizes readiness and personal responsibility. It provides the ultimate decision regarding separation or retention of abusers is the responsibility of the Soldier’s chain of command. Abuse of alcohol or the use of illicit drugs by military personnel is inconsistent with Army values and the standards of performance, discipline, and readiness necessary to accomplish the Army’s missions. Individuals who do not self-refer for treatment and are subsequently identified as positive for controlled substances for which they do not have a valid prescription may be considered in violation of the UCMJ for drug misuse/abuse. 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). g. 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: (1) 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. (2) 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. (3) 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. h. Appendix 12, of the 2019 Maximum Punishment Chart in the Manual for Courts-Martial provides that the maximum punishment of cases involving “other cases” conduct with a child is 15 years of confinement, with total forfeiture and a dishonorable discharge or a bad conduct discharge. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. a. The applicant requests an upgrade to honorable. The applicant’s DD Form 214 provides that the applicant received a under other than honorable conditions characterization of service (UOTHC), this discharge is normally considered appropriate for a soldier discharged for serious misconduct. b. Based on the available evidence the applicant enlisted in the army at the age of 22. After 14 years, 6 months, and 2 days of service they were accused of committing lewd acts upon a child under the age of sixteen. On 11 May 2018 the applicant was drinking alcohol and was accused of holding an 8 year old child against their will and accused of committing a lewd act of kissing the child on their lips and forehead with intent to arouse or gratify their sexual desire. They requested a lawyer during the CID investigation and denied a polygraph test. They received a nonjudicial punishment after the CID investigation concluded and was processed for administrative separation. c. A review of the record provides the administrative process was properly followed according to regulation. The applicant was notified of the intent to separate them for serious misconduct and acknowledged they understood the basis for separation under the provisions AR 635-200, CH 14-12c. They elected to consult with counsel and waived the right to have their case considered by the administrative separation board under the conditions that they would not be discharged prior to 25 June 2019 and the authorization to utilize some of their accrued leave prior to being discharge. They received the required medical and mental health separation examination, they stated that they did not enroll in the Army Substance Abuse Program, instead they voluntarily received counseling for substance abuse and successfully completed a smart recovery program prior to being discharged. d. Chapter 14 establishes policy and prescribes procedures for members being separated for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 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. e. Published Department of Defense guidance indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 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 and found no behavioral health diagnosis. However, the applicant's marking of OBH on the application, although void of discussion or supplied records, may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist, or experience occur during military service? Yes. Per applicant marking alone, OBH was noted. However, the applicant did not discuss a specific condition and did not supply records. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that while the applicant marked OBH on the application, he did not discuss a specific assertion or diagnosis and did not supply records. The medical records are void of a condition for consideration. Accordingly, there is no condition to determine mitigation. (4) Does the condition or experience outweigh the discharge? No. The Board’s Medical Advisor, a voting member, reviewed DoD and VA medical records and found the applicant had no mitigating BH diagnoses. The applicant provided no medical documents or testimony of an in-service condition or experience, that, when applying liberal consideration, could have excused, or mitigate the applicant’s misconduct (serious offense); committed lewd acts upon a child - basis of separation. b. Response to Contention(s): (1) The applicant requests an upgrade to honorable. The Board considered this contention and determined that a discharge upgrade is not appropriate because of the serious and violent nature of the applicant’s misconduct - committing lewd acts upon a child under the age of 16 - basis for separation. 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 applicant contend they did not receive adequate counseling for their alcohol addiction. The Board considered this contention and determined a review of the applicant’s records showed that the applicant did not enroll in ASAP, however the applicant received substance abuse counseling and successfully completed a smart recovery program. 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. 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 board's medical advisor a voting member, reviewed DoD and VA medical records and found the applicant had no mitigating factors that could have excused, or mitigate the applicant’s misconduct (serious offense); committed lewd acts upon a child - basis of separation. 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, 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 AR20210009769 1