1. Applicant’s Name: a. Application Date: 19 July 2022 b. Date Received: 25 July 2022 c. Counsel: Yes 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. The applicant seeks relief contending, in effect, request to upgrade is based on improper procedures and the ability to rejoin the Armed Forces in a different MOS to avoid repercussions from incidents occurring at Fort Bliss. Being reduced in rank by the 2018 Article 15 punishment taught the applicant a valuable lesson. The applicant eventually earned the rank by improving the behavior or actions on and off base. Although being found not guilty of all specifications in the 2020 Article 15 proceedings, the applicant was still discharged through an administrative separation board in February 2022. The 2018 Article 15 filed in the restricted files should not have been allowed in the 2022 separation board according to Army regulations. And the findings of the 2020 administrative investigation should not have been considered by the board members. The Trial Defense Service counsel memorandum presents proper military due process was not followed, which is supported by the applicant’s rebuttal and the third-party supporting statements. Furthermore, CPT G., an elected member of the board with whom the applicant had crossed path at a physical therapy appointment on 4 August 2021, should have been dismissed from the board. The applicant references and includes paragraphs from the memorandum containing legal matters: 2018 Article 15: The 2018 Article 15 was filed in the applicant’s restricted portion of the OMPF. Army Regulation 27-10 states, for those UCMJ, Article 15 reports directed for filing in the restricted portion of the AMHRR, a copy will be filed in the unit NJP file and destroyed at the expiration of two years from the date of punishment or on the Soldier’s transfer, whichever occurs first (paragraph 3-37c). Further, the paralegal specialist will maintain a copy of the completed DA Form 2627 with all allied documents In the MJO for a period of two years (paragraph 3-37h). Reading subparagraphs 3-37c and 3-37h, together strongly infers that a unit should no longer have access to a restricted Article 15 more than two years from the date of punishment. The board members should not have been able to consider the 2018 Article 15. 2020 Administrative Investigation: Army Regulation 635-200, paragraph 1-18, states, no Soldier will be considered for administrative separation because of conduct that has been the subject of judicial proceedings resulting in an acquittal or action having the effect thereof. The applicant was found not guilty at the 2020 Article 15 or nonjudicial punishment proceedings. Therefore, the Article 15 had the effect of an acquittal at judicial proceedings. The board members should not have been able to consider the findings of the 2020 Administrative Investigation. b. Board Type and Decision: In a telephonic personal appearance hearing conducted on 6 March 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 (10 for PA) 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: 22 April 2022 c. Separation Facts: The applicant’s Army Military Human Resource Record (AMHRR) is void of the case separation file. However, the applicant provided several documents (transcript of the administrative board proceedings), which are described below in 3c(5): (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF Administrative Separation Board: The notification to appear before an administrative separation board and advisement of rights is NIF. On 22 February 2022, the administrative separation board convened, and the applicant appeared with counsel. The Board determined: The allegation of sexual harassment from 2018, in the notification of proposed separation (NIF) was supported by a preponderance of the evidence. The allegation of sexual harassment from 2020, in the notification of proposed separation (NIF) was supported by a preponderance of the evidence. The board determined the findings warranted the separation of the applicant. The administrative separation board recommended the applicant’s discharge with characterization of service of under other than honorable conditions. (5) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 April 2018 / 6 years (NIF) b. Age at Enlistment / Education / GT Score: 36 / some college / 106 c. Highest Grade Achieved / MOS / Total Service: E-6 / 19K10, M1 Armor Crewman / 11 years, 23 days d. Prior Service / Characterizations: RA, 30 March 2011 – 13 December 2012 / HD RA, 14 December 2012 – 11 February 2015 / HD RA, 12 February 2015 – 18 July 2016 / HD RA, 19 July 2016 – 18 April 2018 / HD e. Overseas Service / Combat Service: Hawaii, SWA / Kuwait (29 October 2017 – 22 June 2018) f. Awards and Decorations: AAM, AGCM-2, NDSM, GWOTEM, GWOTSM, NCOPDR-2, ASR, OSR g. Performance Ratings: 31 July 2017 – 30 April 2018 / Not Qualified 1 May 2018 – 30 April 2019 / Qualified 1 May 2019 – 4 March 2020 / Qualified 5 March 2020 – 5 August 2020 / Not Qualified h. Disciplinary Action(s) / Evidentiary Record: NIF FG Article 15, dated 30 May 2018, for maltreatment of a person subjected to the applicant’s orders, by sexually harassing the person on 19 April 2018. The punishment consisted of a reduction to E-5 and an oral reprimand. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; VA cover letter; memorandum for record (recorder’s rebuttal to legal matters); seven third-party statements; applicant’s rebuttal to separation; page 2 of 3 statement of SPC B; (Evidence 1-7) text messages; (Evidence 8) Sworn Statement; (Evidence 9) page 2 of 3 sworn statement; (Evidence 10-11) text messages; (Evidence 12) Article 15; memorandum for record (applicant’s legal matters); and document depicting text messages. Additional Evidence: Email with employment rejection letter. 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-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. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant’s Army Military Human Resources Record (AMHRR) is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. The applicant’s AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant’s electronic signature. The applicant’s DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason of Misconduct (Serious Offense), with a characterization of service of Under Other Than Honorable Conditions. The applicant contends proper due process were not followed in the administrative separation board, because the 2018 Article 15 filed in the restricted portion of the AMHRR should not have been allowed or considered by the separation board in 2022; the applicant was found not guilty of the specifications presented in the 2020 Article 15 and AR 635-200, paragraph 1-18b restricts its use in an administrative separation; and an elected member of the administrative separation board should have been dismissed because the applicant cross-path with the member. The applicant’s available AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant desires to rejoin the Military Service. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-201, the applicant was appropriately assigned an RE code of “3.” An RE Code of “3” indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army’s needs at the time and are required to process waivers of reentry eligibility (RE) codes if appropriate. The applicant contends good service and improved actions resulted in earning back the rank. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The third-party statements provided with the application speak highly of the applicant performance and character. The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment as the current discharge rejected an employment with a police department. The Board does not grant relief to gain employment or enhance employment opportunities. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): N/A. b. The applicant presented the following additional contention(s): Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence. c. Counsel / Witness(es) / Observer(s): Mr. S.B. (counsel) 10. 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? No. The Board’s Medical Advisor reviewed DoD and VA medical records and found no mitigating BH diagnoses on the applicant. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused or mitigated a discharge. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): (1) The applicant contends proper due process were not followed in the administrative separation board, because the 2018 Article 15 filed in the restricted portion of the AMHRR should not have been allowed or considered by the separation board in 2022; the applicant was found not guilty of the specifications presented in the 2020 Article 15 and AR 635-200, paragraph 1-18b restricts its use in an administrative separation; and an elected member of the administrative separation board should have been dismissed because the applicant cross-path with the member. The Board considered this contention and determined that the applicant’s available AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The Board noted that the government recorder rebuttal states that the evidence considered was not improper because AR 27-10, para 3-37(c)(2) does not preclude the government’s use as the regulation does not decree that records must be deleted from military justice, or human resources databases, or that Art 15s over two years may not be used as a basis of separation. Rather, the regulation only requires the local copy be destroyed to ensure there is no stigma. The issue here is whether Art 15s filed in the restricted portion of the AMHRR are authorized to be used as a basis of separation. Restricted folder contains documents that may be normally considered improper for viewing by selection boards or career management boards. (table 3-1, AR 600-8-104). AR 600-8-104, para 2-11 authorizes the CG, HRC to authority to grant access to SM’s restricted folders and may be released at the DA level for purposes of career management and retention decisions but is not a routine practice. The applicant was found not guilty of the specifications presented in the 2020 Article 15 and AR 635-200, paragraph 1-18b restricts its use in an administrative separation as it has the effect of an acquittal in at a judicial proceeding. The government recorder states that the 15-6 investigation and Art 15 are two separate and distinct actions with different standards of proof (15-6 standard is preponderance (AR 15-6, para 3-10) and Art 15 is beyond a reasonable doubt (AR 27-10, para 3-18(l)). The government relies on AR 15-6, para 1-12 that authorizes evidence used in a 15-6 investigation can be used in any administrative action against an individual. The government recorder further states that the applicant’s counsel confused the weight of the evidence with the admissibility. AR 635-200, para 18b states “Separation per this regulation normally should not be based on conduct that has already been considered at an administrative or judicial proceeding and disposed of in a manner indicating that separation was not warranted.” Despite the applicant being found not guilty of the sexual harassment offense at the Article 15 hearing beyond a reasonable doubt, the Article 15 hearing did not contemplate separation and therefore para 1-18b is not applicable. Further, to address the contention that an elected member of the administrative separation board should have been dismissed because the applicant cross-path with the member. The government recorder states that the CPT G. was a proper board member because CPT G. and the applicant did not cross paths in a way that would call into question partiality, bias, or objectivity and CPT G. joined the BDE staff after the applicant’s misconduct, and the applicant’s counsel did not identify what aspect of CPT G.’s participation rendered the board member not impartial as set forth in AR 15-6, para 2-3. AR 15-6, para 2-3 states “IOs and board members will be those persons who, in the opinion of the appointing authority, are best qualified for the duty by reason of their education, training, experience, length of service, demonstrated sound judgment and temperament. IOs and board members must be impartial, unbiased, objective, and have the ability to complete the investigation in a timely manner.” The applicant has a right to have impartial board members and may challenge a member who doesn’t meet the standard when the challenge is made at the board proceeding or as soon as the respondent or counsel is aware that grounds exist (see para 7-7a). The regulation does not address the procedure for challenging Board members after the Board recesses. However, it appears that the applicant counsel is alleging a substantial error IAW AR 635-200, para 2-2 because CPT G. and the applicant served on the same BDE staff which created a perception that CPT G. was not impartial in the outcome of the board. AR 15-6, para 3-20d states that a failure to object before the adjournment of Board proceedings result in harmless error. Thus, there is no evidence of improper action by the separation authority, and the discharge is proper and equitable. (2) The applicant desires to rejoin the Military Service. The Board considered this contention and voted to maintain the RE-code at RE-3, which is a waivable code. An RE Code of “3” indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army’s needs at the time and are required to process waivers of reentry eligibility (RE) codes, if appropriate. (3) The applicant contends good service and improved actions resulted in earning back the rank. The Board considered the totality of the applicant’s service record, but determined 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 engaging in sexual harassment, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (4) The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment as the current discharge rejected an employment with a police department. The Board considered this contention but does not grant relief to gain employment or enhance employment opportunities. c. The Board determined that the discharge is, at this time, proper and equitable, in light of 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 there were no mitigating factors for the Board to consider. Since the applicant was discharged for sexual harassment, Under Other Than Honorable Conditions is proper and equitable. 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 UOTHC was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to HD. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code 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. 11. 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 AR20220009306 1