1. Applicant’s Name: a. Application Date: 1 December 2018 b. Date Received: 19 January 2021 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. b. The applicant seeks relief contending, in effect, the discharge was inequitable. The applicant's discharge was based on one isolated incident after 3 years of outstanding service and with no other adverse action. This period of misconduct was the result of traumatic experiences combined with anti-depressant drugs given to the applicant during a deployment to Forward Operation Base in Iraq, and subsequent withdrawal from those drugs. The events that led to the applicant's discharge are not indictive of the applicant's overall character or the nature of service. c. Board Type and Decision: In a records review conducted on 29 September 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) / Army Regulation 635-200, paragraph 14-12c / JKQ / RE-3 / Under Honorable Conditions (General) b. Date of Discharge: 29 November 2006 c. Separation Facts: (1) Date of Notification of Intent to Separate: 24 July 2006 (2) Basis for Separation: The applicant was informed of the following reasons: On 23 November 2005, the applicant was tried and found guilty by General Court-Martial of violation of Article 134, Uniform Code of Military Justice, wrongfully viewing and downloading child pornography. (3) Recommended Characterization: Under Honorable Conditions (General) (4) Legal Consultation Date: 3 August 2006 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 16 November 2006 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 April 2002 / 4 years b. Age at Enlistment / Education / GT Score: 20 / GED / 129 c. Highest Grade Achieved / MOS / Total Service: E-4 / 94Y1P Integrated Family Test Equipment Operator/Maintainer / 3 years, 11 months, 9 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AGCM, NDSM, GWTSM, ASR, Parachutist Badge g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) DA Form 4980-14 (Army Commendation Medal) shows the applicant was awarded the Army Commendation Medal for exceptionally service in support of Operation Iraqi Freedom, for the period 3 September 2003 to 1 March 2004. (2) DA Form 4187 (Personnel Action), 3 January 2006, shows the applicant's unit reported his duty status change from Present for Duty to Confined Military Authorities, effective 23 November 2005. (3) The AMHRR is void of a charge sheet, however, General Court-Martial Order Number 9, 20 March 2006, provides the applicant was charged for violation of Manual for Courts-Martial Article 134 (Input Title) and two specifications. The applicant was found guilty of violation of Article 134 and Specification 1. Between on or about 1 May 2005 and 25 May 2005, of wrongfully and knowingly used a computer to view and download child pornography. The applicant's punishment consisted of a reduction to the grade of E-1, forfeiture of all pay and allowances, and confinement for 10 months. (4) Headquarters, U.S. Army Personnel Control Facility memorandum (Letter of Notification), 24 July 2006, notified the applicant of initiating actions for separation for commission of serious offenses, wrongfully viewing and downloading child pornography. The applicant acknowledged receipt of notification that same day indicating they were advised of their rights, requested legal counsel, and submitted a statement on their behalf, it states, in pertinent part, they understand the reason for separation and that the offenses they were charged with were not indicative of their character and requested to remain on active duty. As a result of their confinement, they are unable to provide supporting testimony or documentation to accurately portray their strength of character, faithfulness to following orders and serving the country. They would like to fulfill their promise they made to the country. (5) DA Form 4187 (Personnel Action), 25 July 2006, shows the applicant's unit reported his duty status changed from Confined Military Authorities to Present for Duty effective 21 July 2006. (6) A memorandum, Headquarters, U.S. Army Garrison Command, Fort Knox, subject: Recommendation for Separation under the Provisions of Army Regulation 635-200, Paragraph 14-12c, (Commission of Serious Offense) [Applicant]), 16 November 2006, the approving authority directed the applicant will be separated from the service under the provisions of Army Regulation 635-200, paragraph 14-12c and will receive a General Discharge Certificate. (7) The AMHRR is void of documents showing the applicant deployed. The ERB is also void of information showing deployment. (8) On 29 November 2006, the applicant was discharged accordingly, the DD Form 214 provides the applicant completed 3 years, 11 months, and 9 days of net active service this period. i. Lost Time / Mode of Return: Confinement military authority 240 days (23 November 2005 to 20 July 2006) / Released from Confinement. j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Mental Status Evaluation, dated 1 August 2006, reflects the applicant had the mental capacity to understand and participate in the proceedings, mentally responsible and meets the retention requirements. The Social Worker stated there was no Axis I diagnosis and there was no evidence of any past or present psychiatric illness that would interfere with chapter proceedings. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Basic Combat Training Certificate, Distinguished Graduate Certificate, Airborne Course Diploma, Certificate of Achievement, Army Commendation Medal Certificate, Certificate of Training, two Letters of Appreciation, Service Award Certificate, Certificate of Appreciation. 6. POST SERVICE ACCOMPLISHMENTS: Continued and excellent support to the Armed Forces by employment at a Depot Maintenance Facility. 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) 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) Chapter 14 (Separation for Misconduct) 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) Paragraph 14-3 (Characterization of Service or Description of Separation) 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. (b) Paragraph 14-12c (Commission of a Service Offense), 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 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKQ” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: (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. g. The Manual for Courts-Martial provides rules that govern the procedures and punishments in all courts-martial and whenever expressly provided, preliminary, supplementary, and appellate procedures and activities. These rules may be known and cited as the Rules for Courts-Martial (R.C.M.). These rules are intended to provide for the just determination of every proceeding relating to trial by court-martial and be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay. (1) Article 134 (General-Article) in effect at the time, provides” Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which per- sons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court." Article 134 makes punishable acts in three categories of offenses not specifically covered in any other article of the code. (a) The term "child means a person who is under the age of 16 at the time of his or her testimony. The term "abuse of a child" means the physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child. The term "exploitation" means child pornography or child prostitution. (b) Maximum punishment for indecent violation of a child (acts, liberties, exposure, language, and other cases) was confinement from 6 months to 7 years, Dishonorable or Bad conduct discharge, and total forfeiture of pay. (2) As of date, Article 134, specifies “Child Pornography” and explains the offense of child pornography is broader than the federal and state statutes referenced below and extends to visual depictions of what appear to be minors. That is, the images include sexually explicit images that may not actually involve minors, but either resemble or are staged to appear so. (a) Article 134—Child pornography is not intended to preempt prosecution of other federal and state law child pornography and obscenity offenses which may be amenable to courts-martial via Article 134 clauses 2 and 3. (2) Federal “Child pornography” and “Obscenity” offenses. Practitioners are advised that the Title 18, United States Code, criminalizes the production, distribution, possession with intent to distribute, possession, and receipt of sexually explicit images of actual children under the age of 18. See 18 U.S.C. §§ 2251; 2252A. Practitioners may charge these offenses utilizing Article 134, clause 3 (crimes and offenses not capital). Practitioners are further advised that Title 18 United States Code, Chapter 71, criminalizes the production of “obscene images,” that is, visual depictions of any kind, including a drawing, cartoon, sculpture, or painting. Such images are considered obscene under federal law when they depict minors involved in sexually explicit activity, and/or engaging in bestiality, sadistic or masochistic abuse. (b) Appendix 12, Maximum Punishment Chart shows possessing, receiving, or viewing child pornography may result in a dishonorable or bad conduct discharge, 10 years of confinement, and total forfeiture of today. 8. SUMMARY OF FACT(S): a. Standard of Review. The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. b. The available evidence provides the applicant underwent a general court martial and found guilty of child pornography. Upon release of confinement, the commander notified the applicant of the intent to separate due to being found guilty by a general court-martial of violation of the UCMJ, Article 134, for wrongfully viewing and downloading child pornography evidence. It appears the applicant's entire period of service was considered in that the applicant received a general discharge rather than a discharge under other than honorable conditions, which is normally considered appropriate. c. Chapter 14 establishes policy and prescribes procedures for separation members 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. d. 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. KURTA FACTORS. 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 did not find a behavioral health condition or psychiatric medications. The applicant did not submit medical records. However, the applicant asserts a trauma disorder with medications prescribed which 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. Applicant assertion only of experiencing a trauma disorder and use of psychiatric medications. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined documentation is insufficient to determine whether the applicant had a condition or experience for mitigation. However, viewing child pornography is not a known progression or sequela of a psychiatric condition. (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 assertion of experiencing a trauma disorder and use of psychiatric medications outweighed the basis for applicant’s separation for viewing child pornography for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends their discharge was inequitable because it was based on one isolated incident in three years of outstanding service. The Board considered the applicant’s 3 years of service and the numerous awards received by the applicant but determined that these factors did not outweigh the applicant’s separation for viewing child pornography. (a) The available evidence provides the applicant was found guilty of downloading and viewing child pornography served 10 months of confinement and discharged for misconduct upon release. (b) At the time the misconduct occurred the Manual for Courts-Martial did not provide specifically for child pornography but acts and incidents fell under indecent acts. However, The Manual for Courts-Martial currently in effect, provides a specific category for child pornography, which provides possessing, receiving, or viewing child pornography may result in a dishonorable or bad conduct discharge, 10 years of confinement, and total forfeiture of pay. (2) In regard to their contention that their misconduct was a result of traumatic experiences combined with anti-depressant drugs given to them during deployment at FOB Ridgeway. The AMHRR and the ERB are void of information showing the applicant was deployed. Additionally, Neither the applicant nor the AMHRR provide documentation of traumatic experiences or anti-depressant drug prescription. 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 assertion of experiencing a trauma disorder and use of psychiatric medications did not excuse or mitigate the offenses of viewing child pornography. The Board also considered the applicant's contention regarding the separation was based on one isolated incident and found that 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 AR20210011354 1