IN THE CASE OF: BOARD DATE: 4 February 2022 DOCKET NUMBER: AR20200009224 APPLICANT REQUESTS: correction of his military record to show: * Reinstatement to United States Military Academy (USMA); * Or that tuition recoupment efforts be halted; * He be permitted to complete his service obligation through enlistment (specialist/E-4) in the United States Army and serve the remainder of his three years in the enlisted ranks of the U.S. Army; * Upgrade of his general, under honorable conditions discharge to an honorable discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * 2 DD Form 149 (Application for Correction of Military Record) * 2 Attorney Letters * Exhibits Provided by Counsel * Exhibit 1, Medical Record Excerpts * Exhibit 2, Action by the Commandant * Exhibit 3, Memorandum for Record * Exhibit 4, Objections to Surprise Witnesses * Exhibit 5, Investigating Officers Findings and Recommendations * Exhibit 6, Email from trial Counsel, dated 23 April 2020 * Memorandum in Support of Application * Exhibit 1, 2 DD Form 214 (Certificate of Release or Discharge from Active Duty) * Exhibit 2, Medical Documents * Exhibit 3, Substance Use Disorder Clinical Care (SUDCC) notes * Exhibit 4, Academic * Exhibit 5, IO Recommendations and Findings * Exhibit 6, Affidavit * Exhibit 7, Narrative * Exhibit 8, Affidavit * Exhibit 9, Affidavit * Exhibit 10, Affidavit * Exhibit 11, Testimony * Exhibit 12, Binder of Images * Exhibit 13, Preliminary Inquiry * Exhibit 14, Appointment Memorandum * Exhibit 15, Notice of Investigation * Exhibit 16, Conservation between and -objection * Exhibit 17, Tactical Officer Recommendations * Exhibit 18, Legal Review * Exhibit 19, Casefile * Exhibit 20, West Point Articles FACTS: 1. Counsel states the applicant was the victim of a sexual assault while on active duty and this assault had adversely impacted his mental health in Post-Traumatic Stress Disorder (PTSD) diagnosis and likely contributed to his misconduct from which he was suspended from the USMA and pending separation from the U.S. Army, and a litany of procedural and due process violations occurred, which precluded a fair and impartial assessment of his alleged misconduct. His mental health to include a severe PTSD diagnosis was inadequately considered, if at all, by the Superintendent at the USMA, before the Superintendent elected to suspend him from the USMA and further recommend his separation from the USMA. The Superintendent relied upon the findings of a misconduct board, which was replete with regulatory and due process violations to the detriment of his opportunity to present his case before a fair and objective hearing. His separation with the general discharge as opposed to an honorable discharge violates Army Regulation 600-8-24 (Officer Transfers and Discharges), as well as (Tittle) 10 USC 1177 which requires an honorable discharge unless all the requirements of the foregoing authorities are met. 2. Exhibits provided by counsel: a. An attorney letter, dated 25 August 2020, states the applicant is on active duty in an authorized leave of absence without pay and allowances pending his separation from the USMA and the U.S. Army due to findings of misconduct of which he awaits final action from the Secretary of the Army Manpower and Reserve Affairs (ASA M&RA). The findings of the USMA and defective legal review by the Office of the Staff Judge Advocate (SJA), have impaired the substantial rights of the applicant, and further failed to adequately consider the impact of his sexual assault and resultant PTSD upon his characterization of service while a cadet at the USMA. (1) On 6 May 2020, the Superintendent of the USMA, Lieutenant General (LTG, recommended the applicant’s separation, the recoupment of his tuition costs, and his discharge with a general, under honorable conditions characterization of service even though the applicant had only a month remaining before graduation and what would have been the successful culmination of four years academic and military study at the USMA. (2) Although the applicant does not condone how USMA summarily violated his rights, suspended him and recommended his unfavorable discharge, he still desires for an immediate return to active duty as a specialist/E-4 for three years’ time, so that he may continue to service his country regardless as to the rank or station that he would have been afforded had he been permitted to complete his studies and graduate with is class from the USMA on 13 June 2020. (3) Federal statutory law required that members who are diagnosed with or reasonably asserting PTSD from sexual assault and who are diagnosed by physician or other medical professionals as experiencing PTSD, shall not be administratively separated until a qualified medical professional can assess whether the PTSD constitutes matters in extenuation that may relate to the overall characterization of a service member. The applicant had a diagnosis of PTSD stemming from a sexual assault that he endured while on active duty. To the attorneys’ knowledge, no such evaluation took place from which qualified medical profession could assess whether the PTSD constitutes matters in extenuation that may relate to the overall characterization of a service member. (4) A review of the Investigating Officer’s (IO) Findings and recommendations, summarized record of the proceedings revealed several regulatory and due process violations, in addition to other erroneous legal conclusions and oversights which constitute legal error and have impaired the substantial rights of the applicant. (a) The improper referral. On 6 February 2020, he appeared before a board which was charged with the investigation as to whether the applicant committed misconduct relating to the events of 9 November 2019, unfortunately, his misconduct board was void ab initio (void at inception). The commandant of cadets made the determination to refer this matter to a hearing before an IO and not the superintendent. The commandant of cadets did not possess the authority to refer this matter to a hearing before an IO. (b) The surprise adverse witnesses. During the misconduct board, the applicant objected to the IO’s decision to call witnesses who were not only averse to him, but also called without any prior notice to the applicant as to their anticipated testimony. (c) The Brigade Tactical Officer’s Alcohol Policy. The applicant was unaware of the Brigade Tactical Department Policy Letter #3 (Alcohol and Alcohol containers/Vessels) dated 12 August 2019. (d) Sexual assault and PTSD. The events of 9 November 2019 were preceded by the applicant’s care and treatment by USMA counselors and mental health professionals, as a consequence of sexual assault to which he endured between his Plebe and Yuk years and resultant PTSD. This assault and his subsequent PTSD impacted his progress at USMA. It adversely affected his academic, social, and military development as testified to by him and similarly acknowledged by the IO. “It is important to note that during his testimony, the applicant stated he was a victim of sexual assault which he reported. The effect of this trauma may have impacted his performance particularly during his third class year.” (5) Defective legal advice. Not a single one of the many aforementioned violations, ovesights and cursory process was ever mentioned let alone documented by the office of the SJA. Moreover, the office of the SJA failed to ever mention any of the many objections raised by the applicant in the legal advice provided to the superintendent and dated 28 February 2020. Instead, the superintendent would later expressly rely upon the very testimonies to which the applicant specifically objected. (6) The applicant requests the above error (s) and injustices within his military be corrected. 3. Exhibits provided: a. Exhibit 1. A medical record, dated 12 July 2020, shows the applicant was referred for a Comprehensive Diagnostic Mental Health Evaluation (CDMHE). b. Exhibit 2. Action by the commandant letter, signed 6 January 2020, shows an IO was appointed. c. Exhibit 3. Standing list of Investigating Officers for Misconduct Investigations Convened Pursuant to Army Regulation 150-1 (USMA Organization, Administration, and Operation), dated 22 October 2019, shows the members were appointed as IO’s for misconduct investigation. The superintendent had personally selected them to serve on a standing list of IO’s. The commandant of cadets would use this list to select an IO for each misconduct case until they were relieved by the superintendent, LTG . d. Exhibit 4. Objections to surprise witness, dated 6 February 2020. e. Exhibit 5. Findings and Recommendations-Misconduct Investigation (MI) Hearing of the applicant memorandum, dated 11 February 2020, shows an MI hearing was conducted on 6-7 February 2020, to consider evidence, hear witnesses, and to make findings and disposition recommendations concerning the applicant’s alleged racially derogatory comments, excessive alcohol consumption requiring hospitalization, drunk and disorderly behavior, and assault on Keller Army Community Hospital (KACH) personnel on or about 9 November 2019. The IO recommended that the applicant be separated from USMA and ordered to active duty as an E-4 for 3 years. He based his recommendations on: (1) Despite having completed over 40 months of the 47-month cadet developmental process, he lacked the attributes and competencies required to be leader in the U.S. Army. (2) While he appeared genuinely remorseful, he harbors an underlying issue that may have come to light when his level of intoxication lowered his inhibitions. Until this issue is resolved, he is not capable of leading Soldiers. (3) He exhibited poor judgement when he chose to become intoxicated on 9 November 2019. At a tailgate, he willfully consumed at least four alcoholic beverages in less than one hour consisting of one beer and three or more mixed drinks or shots while in a (spirit) uniform. The consumption of alcoholic beverages other than wine and beer at a tailgate is a violation of Brigade Tactical Department Policy Letter #3, dated 12 August 2019. He was unaware of this policy. His level of intoxication led to the loss of motor skills and a slate of dysphoria. His failure to conduct himself with propriety and decorum brought discredit on the Corps of Cadets. (4) While at USMA, he had fallen short of standards in multiple pillars. Prior to the event that precipitated this investigation, his performance as a cadet was mediocre at best. (5) His tactical officer, Captain was complimentary of his motivation, resilience and solid sense of duty and honor in his subjective assessment during the applicant’s fourth and third class years, however, he also noted that the applicant had “severe issues being a good teammate with his roommates.” In both reports, CPT - reported that the applicant had “average potential” to serve as an officer and needed to “step up his game.” (6) There was no doubt the applicant had grown personally and professionally while at USMA. However, he currently did not possess the attributes that were essential to serve as a leader of Soldiers. Further, his past performance did not indicate that he would make the dramatic changes needed that would allow him to serve as the leader of character that our Nations’ sons and daughters deserve. f. Exhibit 6. An email in reference to the applicant’s misconduct board, dated 23 April 2020, shows information to be added to his Misconduct Investigation packet. g. On 6 May 2020, the Superintendent took action regarding the IO’s findings. The Superintendent approved the findings and stated: (1) A record of proceedings would be forwarded to Headquarters, Department of the Army, with a recommendation that the applicant be separated from the USMA and discharged from the U.S. Army with a general discharge certificate. (2) Based on the nature of his misconduct and his service record, a call to active duty would not be appropriate. The superintendent, recommended that the applicant be required to reimburse the government the cost of his educational benefits. The applicant was immediately suspended form the USMA until final action on his case. (3) His pay and allowance would be stopped upon his departure from West Point. He would be authorized leave of absence without pay and allowances, pending separation. h. A summarized record of proceedings under the provisions of AR 150-1, paragraph 6-17 pertaining to the applicant held at USMA, West Point, NY on 6-7 February 2020. i. Information from AR 600-20 (Army Command Policy), regarding equal opportunity policy. j. The Brigade Tactical Department (BTD) Policy Letter #3-Alcohol and Alcohol Containers/Vessels memorandum, dated 12 August 2019. k. An attorney letter, dated 29 November 2021, pertaining to supplemental to the applicant’s application being put on hold due to his initial application, by prior counsel, missing vital information with a request that the ABCMR issue a new advisory opinion in this matter following review of this new supplemental application. l. An attorney memorandum, in support, of his application of correction of records, is a supplement to his application submitted by previous counsel. The charge against him was erroneous and unjust. It was the result of an incident where the applicant was involuntarily intoxicated by a likely spiked drink. He was charged as a result of an investigation which was severely factually and procedurally flawed. He was induced into signing a memorandum which waived the consideration of the impact of his PTSD from being sexually assaulted. Finally, his punishment was egregious in caparison to the significantly lighter punishments issued by the USMA to much more sever actions. In short, his actions, following an unforeseen reaction to what was likely a spiked drink, should not determine the course of the rest of his life. He should never have been separated from the Army. m. Exhibit 1. The Office of ASA M&RA, Washington, DC memorandum, from Deputy Assistant Secretary of the Army (Military Personnel) , pertaining to the misconduct separation of the applicant, shows the approval of the superintendent’s recommendation to separate the applicant from the USMA under the provision of paragraph 6-9b (Alcoholic Beverages), paragraph 6-11 (Conduct unbecoming a cadet of the Regular Army), and paragraph 6-16 (Other misconduct offenses). He also found the applicant unsuited for further military service and directed his discharge from the U.S. Army with a general discharge certificate. He further directed that the applicant reimburse the government the cost of his educational benefits in the amount determined by Defense Finance and accounting Services (DFAS). n. Exhibit 2 and 3. The attorney/applicant provides medical records (enclosed for the Board's review). He also provides affidavits of support from fellow cadets. Some of whom say the applicant did not show any hint of being racist; the applicant did not appear to be intoxicated; the applicant’s drink may have been spiked by a cadet from Columbia. o. The attorney/applicant provides the above exhibits and exhibits 4-19 and portions of his military service records as well as Articles from various sources regarding USMA alleged cadet offenses. 4. Review of the applicant's official records shows his enlistment documents are not available for review however, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: a. He entered active duty on 27 June 2016. b. On 1 September 2020, the Deputy Assistant Secretary of the Army (Military Personnel) approved the applicant’s misconduct separation. He approved the recommendation to separate the applicant from the United States Military Academy (USMA) under the provision of reference 1.a., paragraph 6-9b (Alcoholic Beverages), paragraph 6-11 (Conduct unbecoming a cadet of the Regular Army), and paragraph 6- 16 (Other misconduct offenses). (1) He found the applicant is unsuited for further military service. He directed the discharge of the applicant from the United States Army with a General discharge certificate. (2) He directed that the applicant reimburse the government the cost of his educational benefits in the amount determined by the Defense Finance and Accounting Services (DFAS) pursuant to references 1.b., 1.c., and the terms of his service agreement (USMA Form 5-50). c. The applicant was discharged 1 September 2020, as a cadet, under the provisions of AR 150-1 for misconduct with a characterization of service as general. He completed 4 years, 2 months, and 5 days of active service. He was awarded or authorized: National Defense Service Medal. It also shows: * Block 18 (Remarks): Block 12c (Net Active Service this Period): Includes service as a USMA Cadet from 27 June 2016 to1 September 2020. Service not creditable for any purpose in commissioned officer status * Block 24 (Character of Service) General * Block 28 (Narrative Reason for Separation) Misconduct 5. By regulation, AR 150-1, cadets at USMA are members of the Regular Army and subject to military law and the UCMJ (see 10 USC 7075(b)(2) and 802(a)(2)). However, non-judicial punishment (see UCMJ, Article 15) may not be imposed upon cadets (see AR 27–10). Following a hearing for conduct deficiency, misconduct, or honor resulting in a finding of a violation of para-graphs 6–6 through 6–13, 6–15, and 6–16, respectively, the Superintendent, USMA may impose the following sanctions in such amounts or in such combinations as the Superintendent, USMA deems appropriate: Separation from USMA in accordance with table 8–2. 6. By regulation (AR 635-5), the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. a. Block 24 (Character of Service) characterization or description of service is determined by directives authorizing separation. Proper completion of this block is vital since it affects the Soldier’s eligibility for Post service benefits. b. Block 28 (Narrative Reason for Separation) is based on regulatory or other authority and can checked against the cross reference in AR 635-5-1 (Separation Program Designator (SPD) Codes). 7. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 8. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA), Federal Electronic Health Record (FEHR) & Health Artifacts Image Solutions (HAIMS) indicates the applicant was seen on 18 Jul 2019. He reported trauma related symptoms that were implanting his ability to perform his duties. He stated he was raped 2 years ago and had suppressed a lot of feelings but had gradually confided in his girlfriend about what happened. Since their relationship ended six weeks prior, he reports feeling highly symptomatic. Provider diagnosed him with Adjustment Disorder with Depressed Mood but noted that he likely had delayed onset of PTSD. The provider placing the applicant on medical leave for 3-4 weeks to remain in transient barracks and receive therapy at the Cadet Development Center (CDC). His treatment records from the CDC were not available for review. On 9 Nov 2019, he was admitted to the ER due to alcohol abuse with intoxication. He was brought by ambulance after being found after losing consciousness in his barracks room. A friend told the paramedic that the applicant had 1 beer, one shot, and 3 solo cups of mixed drinks. In the ER he was noted to be belligerent and uncooperative with care. He was “cursing and calling staff names, including the N word.” He was restrained with soft wrist restraints. He was diagnosed with Alcohol Abuse with intoxication. On 18 Nov 2019, the applicant was evaluated due to enrollment in the Army Substance Abuse Program (ASAP). He reported that he had 1 beer, 1 shot of whiskey, 1 shot of rum, and 1 tequila (mixed drink) between 4-5:15 pm at the tailgate party. He believes that one of his friends topped off his mixed drink when he was in the bathroom. He believed Everclear was added to his drink. He experienced a blackout and was helped back to his barrack’s room. His BAC was .27 two hours after admission to the hospital. He completed mandated ASAP treatment on 19 Dec 2019. He completed his separation physical on 17 &19 Jun 2020. He was found medically fit and cleared for administrative separation. A review of JLV indicates the applicant has not been evaluated or treated in the VA system. He does not have a service connected disability rating. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is documentation to support a behavioral health diagnosis at the time of his discharge. He met retention standards at the time of his discharge. Under liberal guidance, PTSD is considered a mitigating factor for alcohol abuse. The ethanol level and his hypoxia could have resulted in his agitation and belligerent behavior. However, the racially derogatory language used was not caused by his PTSD or alcohol use. His ethanol level would have lowered his inhibitions and resulted in language that he likely would have suppressed if not intoxicated. (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) Yes (2) Did the condition exist or experience occur during military service? (a) Yes (3) Does the condition or experience actually excuse or mitigate the discharge? (a) Partial, mitigates alcohol use but not the racially derogatory language (4) Does the condition or experience outweigh the discharge? (a) N/A BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was warranted. The applicant’s contentions, the military record, a medical review, and regulatory guidance were carefully considered. Based upon a preponderance of the evidence, the Board determined there is sufficient evidence to cancel the education debt, which should result in reimbursement to the applicant any money already recouped. The Board considered the medical advisor’s finding that the applicant’s PTSD related to sexual assault was partially mitigating of the misconduct that resulted in his discharge from the U.S. Military Academy. The Board determined that waiver of reimbursement of educational expenses was consistent with equity and good conscience and in the best interest of the United States. The Board further determined that, based on the applicant’s misconduct and service record, a call to active duty would not be appropriate. 2. The Board considered counsel’s contentions regarding procedural and due process violations during the misconduct hearing and separation process, but found the applicant has failed to demonstrated the existence of an error or injustice warranting any additional relief, to include reinstatement in the U.S. Military Academy, allowing him to enlist in the Army, or an upgrade of the general (under honorable conditions) discharge. The Board noted the applicant was not administratively separated under conditions other than honorable and, as such, the statutory requirements of Title 10, U.S.C., section 1177 are not applicable to this case. Further, in a 6 May 2020 memorandum, the Superintendent reviewed the applicant’s report of sexual assault and determined the separation action was not in retaliation for the unrestricted report. The Board reviewed the misconduct hearing and separation proceedings, including the applicant’s objection to the additional witnesses, and found the applicant has failed to demonstrate by a preponderance of evidence the existence of an error that had a material adverse effect on his substantial rights. The investigating officer was appointed by the authority of the Superintendent under the provisions of Army Regulation 150-1. The witnesses were called in response to the applicant’s testimony during the misconduct hearing. The Superintendent, in making his recommendation that the applicant be separated from the U.S. Military Academy, expressly considered the applicant’s lack of sufficient notice argument as well as his contention that the witnesses were biased against him when weighing the testimony presented by said witnesses. The recommendation was reviewed and approved by the Deputy Assistant Secretary of the Army (Military Personnel). 3. The Board also carefully considered published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the medical records and the review and conclusions of the reviewing official. The Board considered the medical advisor’s finding of partial mitigation of the misconduct, but determined there was insufficient evidence of in- service mitigating factors to overcome the misconduct. Taking into account the partially mitigated misconduct, the applicant’s service was not sufficiently meritorious to warrant an honorable discharge. The Board determined that the greater weight of the evidence reflects the applicant’s separation as well as the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to reflect waiver of recoupment or reimbursement of the advanced education costs. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any further relief. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. 2. Army Regulation (AR) 150-1 (USMA Organization, Administration, and Operation), regulation applies to cadets, cadet candidates, and individuals assigned, appointed, or detailed to the United States Military Academy, United States Military Academy Preparatory School, West Point Military Reservation, including Department of Defense Civilians and Department of Army contractors as appropriate. a. Cadets at USMA are members of the Regular Army and subject to military law and the UCMJ (see 10 USC 7075(b)(2) and 802(a)(2)). However, non-judicial punishment (see UCMJ, Article 15) may not be imposed upon cadets (see AR 27–10). b. Following a hearing for conduct deficiency, misconduct, or honor resulting in a finding of a violation of para-graphs 6–6 through 6–13, 6–15, and 6–16, respectively, the Superintendent, USMA may impose the following sanctions in such amounts or in such combinations as the Superintendent, USMA deems appropriate: Separation from USMA in accordance with table 8-2. Rule 5 states if separation action is started after commencement of the third academic year (junior year) but before commencement of the fourth academic year (senior year) and the cadet entered USMA from a civilian status, USMAPS, or any component and is separated or resigns then the cadet will be ordered to active duty as an E–4 (or appropriate grade) for 3 years, or discharged from the Army if active service is inappropriate, or re-coupment may be sought. However, if the separation authority determines that the cadet is being separated from the Academy because of demonstrated unsuitability, unfitness, or physical disqualification from military service, the cadet will be discharged from the Army. Each case will be reviewed individually. c. Paragraph 8–2. Delegation of separation and discharge authority. The Superintendent, USMA, is delegated the authority to separate from USMA, prior to the commencement of term one of their second class year, cadets who have no prior service obligation remaining and to discharge such cadets from the Army with issuance of an honorable or general discharge certificate, unless such cadets entered USMA from a military Service other than the Army, in which case they will be transferred to their parent Service upon separation under this paragraph. d. Conduct investigations, misconduct hearings, and honor investigative hearings convened pursuant to this regulation will be closed to the public. Persons with an official interest in a proceeding may be admitted to observe a proceeding at the discretion of the convening authority, or his or her designee, when their attendance would not have an adverse effect on the fairness and dignity of the proceeding or the respondent cadet’s right of privacy. 3. Army Regulation (AR) 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a of the regulation currently in effect provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member'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. b. Paragraph 3-7b of the regulation currently in effect provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-11 states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 4. Army Regulation 635-5 (Separation Documents), states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. a. Block 24 (Character of Service) characterization or description of service is determined by directives authorizing separation. Proper completion of this block is vital since it affects the Soldier’s eligibility for Post service benefits. b. Block 28 (Narrative Reason for Separation) is based on regulatory or other authority and can checked against the cross reference in AR 635-5-1 (Separation Program Designator (SPD) Codes). 5. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 6. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria, and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200009224 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1