1. Applicant’s Name: a. Application Date: 4 January 2023 b. Date Received: 9 January 2023 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 uncharacterized. The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. The Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28, which stipulates a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. b. The applicant would like to reenlist in the U.S. Army, however, was informed by a recruiter that the type of discharge would need to be changed to be able to apply for a waiver to reenlist. c. Board Type and Decision: In a telephonic personal appearance hearing conducted on 6 November 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: Pattern of Misconduct / AR 635-200, Chapter 14-12b / JKA / RE-3 / Uncharacterized b. Date of Discharge: 14 February 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: Undated (2) Basis for Separation: The applicant was informed of the following reasons: The applicant received a summarized Article 15, a field grade article 15, and was investigated for sexual assault. (3) Recommended Characterization: Uncharacterized (4) Legal Consultation Date: On 7 February 2018, the applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 8 February 2018 / Uncharacterized 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 April 2017 / 8 years b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / 97 c. Highest Grade Achieved / MOS / Total Service: E-2 / None / 5 months and 23 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: None g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) CG Article 15, 15 November 2017, for: (a) Dereliction in the performance of duties known to the applicant, in that the applicant willfully failed to wake up for fireguard shift on or about 14 October 2017. (b) Dereliction in the performance of duties known to the applicant, in that the applicant willfully failed by falling asleep during fireguard shift duty on or about 15 October 2017. (c) The punishment consisted of extra duty and restriction for 14 days. (2) FG Article 15, 2 February 2018, for: (a) Going from appointed place of duty without authority on or about 28 November 2017. (b) Causing an M4 rifle to touch by poking, through the clothing, the buttocks of Private C__a causing bodily harm to this Soldier, between on or about 15 and 16 September 2017. (c) Touching by slapping, through the clothing, the buttocks of Private P__ causing bodily harm to this Soldier, between on or about 15 and 16 September 2017. (d) Causing an M4 rifle to touch by poking, through the clothing, the buttocks of Private J__ causing bodily harm to this Soldier, between on or about 15 and 16 September 2017. (e) Causing an M4 rifle to touch by poking, through the clothing, the buttocks of Private Two C__o causing bodily harm to this Soldier, between on or about 15 and 16 September 2017. (f) Touching by slapping, through the clothing, the buttocks of Private C__s causing bodily harm to this Soldier, between on or about 15 and 16 September 2017. (g) Touching by slapping, through the clothing, the buttocks of Private B__ causing bodily harm to this Soldier, between on or about 15 and 16 September 2017. (h) Touching by slapping, through the clothing, the buttocks of Private C__o causing bodily harm to this Soldier, between on or about 15 and 16 September 2017. (i) Touching by slapping, through the clothing, the buttocks of Private Two A__ causing bodily harm to this Soldier, between on or about 15 and 16 September 2017. (j) Touching by slapping, through the clothing, the buttocks of Private Two C__y causing bodily harm to this Soldier, between on or about 15 and 16 September 2017. (k) Touching by slapping, through the clothing, the buttocks of Private O__ causing bodily harm to this Soldier, between on or about 15 and 16 September 2017. (l) Touching by slapping, through the clothing, the buttocks of Private Two B__ causing bodily harm to this Soldier, between on or about 15 and 16 September 2017. (m) The punishment consisted of a reduction from E-2 to E-1; forfeiture of $819.00 pay (suspended); and extra duty and restriction for 45 days (suspended). (3) The applicant’s Enlisted Record Brief, 24 January 2014, shows the applicant was flagged for adverse action (AA), effective 8 January 2018, involuntary separation/field initiated (BA), effective 8 January 2018, and law enforcement investigation (MA), effective 17 November 2017; was ineligible for reenlistment due to pending separation (9V). The applicant was reduced to E-1 effective 2 February 2018. FLAGS: AA, BA, MA RE/Prohibition code: 9V (4) Law Enforcement Report - Final, 1 February 2018, shows an investigation established probable cause existed to believe the applicant committed the offense of Abusive Sexual Contact to multiple Soldiers. All individuals interviewed detailed multiple incidents where the applicant had grabbed, slapped, or poked them on the buttocks with the applicant’s hand or rifle muzzle. The applicant confessed to multiple incidents where the applicant had touched multiple Soldiers on the buttocks. (5) DA Form 4833 (Commander Report of Disciplinary or Administrative Action) shows the applicant was referred on 26 February 2018 for Abusive Sexual Contact on 14 September 2017. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Mental Status Evaluation, 29 January 2018, shows the applicant was psychiatrically 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 applicant was diagnosed with other problems related to employment. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149. 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) 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. (4) 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. (5) Paragraph 14-12b, addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. (6) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army’s best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. e. Army Regulation 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 “JKA” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12b, pattern of misconduct. 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 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. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. a. The applicant will be considered for upgrade to honorable. The applicant’s AMHRR, the issues, and documents submitted with the application were carefully reviewed. b. The applicant states per the applicant’s recruiter the type of discharge would need to be changed to be able to apply for a waiver to reenlist. 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 RE codes if appropriate. c. The Army Review Board Agency provided Criminal Investigation Division reports to the applicant at the email address provided in the application on 24 October 2023 requesting comments but received no response from the applicant as of 30 October 2023. 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. 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): No additional documents were submitted. b. The applicant presented the following additional contention(s): Applicant provided oral arguments in support of the contentions he provided in his written submissions and in support of his documentary evidence. c. Counsel / Witness(es) / Observer(s): Applicant only appearance 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, applicant's statement, and/or civilian provider documentation and found that the applicant has no Behavioral Health diagnoses/experience that could mitigate or excuse the 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. Prior Decisions Cited: None c. Response to Contention: The Board considered the applicant’s contention and determined that a change to the applicant’s characterization of service/RE code is not warranted. d. 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. e. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration to the applicant’s contention to upgrade his discharge in order to reenlist, There are no BH diagnoses to mitigate the offenses of abusive sexual contact. Based on the misconduct (abusive sexual contact), the current discharge is appropriate. 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 Board recommends applicant re apply with more post service information and character letters. (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. ? 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 AR20230004484 1