1. Applicant’s Name: a. Application Date: 11 August 2021 b. Date Received: 17 August 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 under other than honorable conditions. The applicant requests an upgrade to honorable or general (under honorable conditions). The applicant seeks relief contending, in effect, the applicant was misrepresented during time in the Army when the applicant was facing a charge in a civilian court. The applicant did not receive a serious offense charge in the Army, but the applicant still was separated and the applicant would like an explanation. b. Board Type and Decision: In a records review conducted on 2 October 2023, and by a 5 -0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 10 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-3 / Under Other Than Honorable Conditions b. Date of Discharge: 13 February 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 December 2018 (2) Basis for Separation: The applicant was informed of the following reasons: At or near Lawton, OK, on or about 4 February 2018, the applicant committed a sexual act upon J__ W__ by penetrating W__’s vulva with the applicant’s penis by causing bodily harm to W__, to wit: penetrating W__'s vulva with the applicant’s penis without W__’s consent. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 14 December 2018 (5) Administrative Separation Board: On 28 December 2018, the applicant waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 25 January 2019 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 25 July 2016 / 5 years b. Age at Enlistment / Education / GT Score: 19 / High School Graduate / 96 c. Highest Grade Achieved / MOS / Total Service: E-3 / 91E10, Allied Trade Specialist / 2 years, 6 months, 19 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Company Grade Article 15, 9 October 2018, for; Failing to go at the time prescribed to the appointed place of duty, scheduled appointment, on or about 16 August 2018. Having knowledge of a lawful order, not to leave Fort Sill without approval, failed to obey this order by leaving Fort Sill for food on or about 15 August 2018. The punishment consisted of a reduction from E-3 to E-2 (suspended); forfeiture of $428.00 pay (suspended); and extra duty 14 days. OK Uniform Incident / Offense Report, 4 February 2018, shows W__ reported that W__ was raped by the applicant. OK Uniform Incident / Offense Report, 8 February 2018, shows the applicant was interviewed by a detective at the Lawton Police Department. The applicant made statements of having an active role in the incident and was placed under arrest for first degree rape. State of OK Court document, 9 February 2018, shows the applicant was charged with Rape- First Degree, a felony on or about 4 February 2018 with the use of force, threats, violence, or by means of threats of force or violence accompanied by apparent power to execute to W__, and did then and there rape, ravish, carnally know and have sex penetration and intercourse with W__ against W__ 's will and consent. Four Developmental Counseling Forms, for various acts of misconduct. The applicant provided Developmental Counseling Form, 20 June 2018, reflecting the applicant was counseled for violation of an order from the company commander. On 15 August 2018, the applicant left Fort Sill without approval. The applicant stated, privileges should not be taken away because the applicant did nothing wrong to anyone. The applicant feels as though the applicant is being treated as a guilty person and stepping on the applicant’s rights of freedom because the applicant was detained in February. Memorandum for Record, 27 November 2018, the applicant pleaded that the applicant’s separation from the military not be categorized as an “other than honorable discharge” because the applicant always did the best and worked as hard as the applicant could to accomplish work. Self-authored statement, 13 November 2018, states the applicant is facing a serious court case in civilian court. The applicant states it was said that the applicant admitted to nonconsensual sex with (W__), however the applicant did not admit to doing anything. The applicant requested consideration of anything except an other than honorable discharge. The applicant’s Enlisted Record Brief, 14 February 2019, shows the applicant was flagged for law enforcement investigation (MA), effective 7 February 2018, APFT failure (JA), effective 1 November 2017, and elimination - field initiated (BA), effective 10 October 2017; was ineligible for reenlistment due to pending separation (9V). The Assignment Eligibility Availability (AEA) code shows AEA code “C” which is temporarily ineligible for reassignments due to medical, convalescence, confinement due to trial by court martial, enrollment in Track III ASAP, or local bar to reenlistment. FLAGS / AEA codes: MA, JA, BA / C RE/Prohibition code: 9V The applicant’s DD Form 214, shows the applicant was reduced from E-3 to E-1. i. Lost Time / Mode of Return: Confined by Civilian Authorities for 4 months and 13 days, 8 February 2018 to 20 June 2018. This period is not annotated on the DD Form 214 block 29. j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Mental Status Evaluation, 28 March 2018, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. The applicant had been screened for PTSD and TBI with negative results. The command was advised to consider the influence of these conditions. The applicant was diagnosed with cannabis and alcohol use disorders. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DA Form 4856 (Developmental Counseling Form). 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), 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) 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 prescribes 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: 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. 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 or general (under honorable conditions). The applicant’s AMHRR, the issues, and documents submitted with the application were carefully reviewed. The applicant’s DD Form 214 shows the applicant served 2 years, 6 months, 19 days. State of OK Court document, 9 February 2018, shows the applicant was charged with Rape-First Degree in a civilian court. On 13 February 2019, the applicant was discharged with a under other than honorable conditions characterization of service. The record confirms the applicant’s discharge was appropriate because the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army and was prejudicial to good order and discipline. By the misconduct (serious offense), the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. The applicant contends, in effect, the applicant was misrepresented during time in the Army when the applicant was facing a charge in a civilian court. The applicant’s AMHRR shows the separation authority carefully considered the applicant’s file, documentation submitted, and the chain of command recommendations prior to directing that the applicant be separated from the Army. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends, in effect, the applicant did not receive a serious offense charge in the Army, but the applicant still was separated and the applicant would like an explanation. Per AR 635-200, paragraph 14-12c, 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. 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/experiences: Adjustment DO with depressed mood and anxiety. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the diagnosis of Adjustment DO was made during active duty. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that there are no mitigating BH conditions. While the applicant was diagnosed with Adjustment DO with anxiety and depressed mood, this condition does not mitigate his misconduct because the condition developed as a result of the consequences of his misconduct (being jailed) and did not play any role in the commission of said misconduct. (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): (1) The applicant contends, in effect, the applicant was misrepresented during time in the Army when the applicant was facing a charge in a civilian court. The Board considered this contention but determined there was no corroborating evidence presented by the applicant and the assertion does not outweigh the misconduct of rape. (2) The applicant contends, in effect, the applicant did not receive a serious offense charge in the Army, but the applicant still was separated, and the applicant would like an explanation. The Board considered this contention but found no corroborating evidence to support the applicants claim that he did not receive a serious offense charge in the Army and found that he was separated proper and equitably with a UOTH under serious offense for rape. 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 applicant’s Adjustment Disorder did not excuse or mitigate the rape misconduct. 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 Under Other Than Honorable Conditions discharge was proper and equitable as the applicant’s conduct fell below that level of satisfactory service warranting a General discharge or 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, 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 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 AR20210014192 1