1. Applicant’s Name: a. Application Date: 5 June 2022 b. Date Received: 21 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 general (under honorable conditions). The applicant requests an upgrade to honorable, a narrative reason change, and a change to his separation code and reentry eligibility (RE) code. The applicant seeks relief contending, in effect, the applicant had honorable service. The applicant believes the discharge was both procedurally and substantively unfair. The discharge was unfair at the time and remains so now. The applicant believes he should be given an honorable discharge with Secretarial Authority and RE 1. b. Board Type and Decision: In a telephonic personal appearance hearing conducted on 6 February 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 / General (Under Honorable Conditions) b. Date of Discharge: 16 December 2021 c. Separation Facts: (1) Date of Notification of Intent to Separate: 3 May 2021 (2) Basis for Separation: The applicant was informed of the following reasons: for between on or about 1 November 2018 and on or about 15 April 2919 the applicant created a hostile environment for SPC K.C., in violation of AR 600-20, paragraph 7-7g (2); Between on or about 15 April 2019 and on or about January 2020, the applicant maltreated SPC K.C., in violation of Article 93, UCMJ; Between on or about 17 August 2020 and on or about 19 October 2020, the applicant fraternized with SPC E.R., in violation of AR 600-20, paragraph 4-14b; Between on or about 17 August 2020 and on or about 19 October 2020, the applicant created a hostile environment for SPC E.R., in violation of AR 600-20, paragraph 7-7g (2); and Between on or about 13 October 2020 he maltreated SPC E.R. in violation of Article 93, UCMJ (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: On 10 May 2021, the applicant indicated a desire to waive consideration of the case by an administrative separation board, if the applicant was given a characterization of service no less favorable than a general (under honorable conditions) discharge certificate. It was also indicated that if the conditional waiver of a general, (under honorable conditions) discharge was not accepted the applicant request an administrative separation board to hear the case. On 19 June 2021, the separation authority having reviewed the applicant’s conditional waiver, disapproved the conditional waiver, and directed a board convene and determine if the applicant should be separated from the US Army and if separated, the characterization of service the applicant should receive. (5) Administrative Separation Board: On 8 July 2021, the applicant was notified to appear before a Board of Officers, on 28 July 2021, to determine whether the applicant should be discharged for a commission of a serious offense before the expiration of the applicant term of service. The administrative separation board convened to determine whether the applicant should be separated from the Army prior to the expiration of his term of service, under the provisions of AR 635-200, Chapter 14-12c, Commission of a Serious Offense. The board, in a closed session and upon secret ballot with a majority vote taken, made the following findings and recommendations: The allegation between on or about 1 November 2018 and on or about 15 April 2019, the applicant created a hostile environment for SPC K. C., in the notification of proposed separation was supported by a preponderance of the evidence. This finding did not warrant the separation of the applicant. The allegation that between on or about 15 April 2019 and on or about January 2020, the applicant maltreated SPC K.C., in the notification of proposed separation was support by a preponderance of the evidence. This finding did warrant the separation of the applicant. The allegation that between on or about 17 August 2020 and on or about 19 October 2020, the applicant fraternized with SPC E.R., in the notification of proposed separation was supported by a preponderance of the evidence. This finding did warrant the separation of the applicant. The allegation that between on or about 17 August 2020 and on or about 19 October 2020, the applicant created a hostile environment for SPC E.R., in the notification of proposed separation, was supported by a preponderance of the evidence. This finding did warrant the separation of the applicant. The allegation that between on or about 13 October 2020, the applicant maltreated SPC E.R., in the notification of proposed separation was not supported by a preponderance of the evidence. This finding did not warrant the separation of the applicant. In view of the findings, the board recommended that the applicant be separated from the United States Army with a characterization of service of General (Under Honorable Conditions). (6) Separation Decision Date / Characterization: On 3 November 2021, the separation authority having reviewed the separation packet and the findings and recommendation of the Administrative Separation Board directed the applicant be separated from the Army prior to the expiration of the applicant term of service with a characterization of service of General (Under Honorable Conditions). 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 June 2018 / 6 years b. Age at Enlistment / Education / GT Score: 22 / 1 Year College / 104 c. Highest Grade Achieved / MOS / Total Service: E-6 / 15C30, Operator / 8 years, 4 months, 10 days d. Prior Service / Characterizations: RA, 7 August 2013 to 3 June 2018 / HD e. Overseas Service / Combat Service: SWA / Kuwait (28 September 2015 to 31 March 2016, 15 June 2016 to 25 August 2016), Iraq (1 April 2016 to 14 June 2016, 24 September 2017 to 2 December 2017, and 22 March 2018 to 7 June 2018), and Afghanistan (7 November 2019 to 18 February 2020) f. Awards and Decorations: ARCOM-3, MUC, AGCM-2, NDSM, GWOTEM, GWOTSM, ACM-CS, IRCM-CS, NCOPDR-2, ASR, NATOMDL g. Performance Ratings: 1 April 2018 to 15 May 2019, Highly Qualified 16 May 2019 to 15 May 2020, Highly Qualified 29 January 2021 to 16 December 2021, Qualified h. Disciplinary Action(s) / Evidentiary Record: Memorandum for SSG H, G (applicant) “No Contact Order” from his commander, whereas giving him a direct order to cease and desist any and all contact with SGT K.C.; this memorialized the verbal no contact order that the applicant was given on 7 January 2020 regarding SGT K.C. Preliminary Inquiry Concerning Sexual Harassment Allegation against the applicant, dated 9 December 2020, from the Investigating Officer, into the 20 October 2020 allegation that the applicant sexually harassed SPC E.R. It was found that the applicant’s actions had met the criteria of sexual harassment as defined in AR 600-20, Chapter 7 by creating a hostile work environment. Although their description of the events differs from one another, it was found SPC R more credible than the applicant. Several sworn statements corroborated that SPC R’s discomfort with the situation and that the applicant had a pattern of this type of behavior. The greater weight of the evidence supported that the applicant’s actions amounted to sexual harassment and created a hostile work environment. Report of Mental Status Evaluation dated 5 March 2021, which indicates the applicant could understand and participate in administrative proceedings and appreciated the difference between right and wrong. The applicant’s behavioral health condition was likely not a mitigating factor in the alleged behavior leading to the applicant administrative separation. The applicant met retention standards and was cleared for administrative action as deemed necessary. Evidence in the AMHRR indicate the applicant was reduced in grade from E-6 to E-5, however documents supporting how this action occurred are not contained in the record. i. Lost Time / Mode of Return: None j. Applicant Provided and/or AMHHR Listed PTSD / TBI / Behavioral Health Condition(s): NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; treatment summary, dated 8 July 2021 from Imani Behavioral Health; and DD Form 214 for the period of service under review. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities’ last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any 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) 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. (5) 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. (6) Paragraph 14-12c, states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. e. Army Regulation 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 reentry 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, a narrative reason change, and a change to his separation code and reentry eligibility (RE) code. The applicant’s Army Military Human Resource Record (AMHRR), the issues and documents submitted with the application were carefully reviewed. The evidence in the AHMRR indicates separation action was initiated against the applicant for creating a hostile environment for SPC K.C., in violation of AR 600-20, paragraph 7-7g (2); maltreating SPC K.C., in violation of Article 93, UCMJ; fraternizing with SPC E.R., in violation of AR 600-20, paragraph 4-14b; creating a hostile environment for SPC E.R., in violation of AR 600-20, paragraph 7-7g (2); and maltreating SPC E.R. in violation of Article 93, UCMJ. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635- 200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Misconduct (Serious Offense),” and the separation code is “JKQ.” Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214, and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant seeks relief contending, in effect, the applicant had honorable service. The applicant believes the discharge was both procedurally and substantively unfair. The discharge was unfair at the time and remains so now. The applicant believes that he should be given an honorable discharge with Secretarial Authority and RE 1. The applicant’s contentions were noted; however, the service record indicates the applicant committed several discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant’s incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. 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. J.P. (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, a voting member, reviewed the applicant's DOD and VA health records and/or civilian provider documentation and found there are no diagnoses. However, the applicant marked Other Mental Health. (2) Did the condition exist or experience occur during military service? No. The applicant marked Other Mental Health on the application, however, condition or diagnosis asserted is unknown. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor noted that per ARBA guidance, the applicant's notation of Other Mental Health is applied as assertion of a behavioral health condition influenced the misconduct. The Board’s Medical Advisor then determined there were no behavioral health diagnoses or experiences for mitigation. (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): (1) The applicant seeks relief contending that the applicant served honorably. 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 creating a hostile environment, maltreatment, and fraternizing with SPC E.R, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (2) The applicant seeks relief contending that the applicant’s discharge was both procedurally and substantively unfair. The applicant believes the discharge was unfair at the time and remains so now. The Board considered this contention and the applicant’s assertion of unfairness and inequity; however, the Board determined that there is insufficient support in official records, and the applicant did not provide supporting documentation to provide merit to the claim. Ultimately, the Board determined that the assertion alone did not outweigh the basis of separation due to the nature of the offenses. (3) The applicant seeks relief requesting a change to the narrative reason for separation to Secretarial Authority and an RE code change to RE-1. The Board considered this contention and the totality of evidence and determined there were insufficient mitigating factors such that would mitigate the applicant’s discharge, and thus the narrative reason for separation is proper and equitable. The Board 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. 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 there were no mitigating factors for the Board to consider. Since the applicant was discharged for creating a hostile environment, maltreatment, and fraternizing with SPC E.R, the applicant’s General (Under 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. 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 GD 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 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. ? 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 AR20220010333 1