1. Applicant's Name: a. Application Date: 9 August 2015 b. Date Received: 11 September 2015 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests through legal counsel an upgrade of his general (under honorable conditions) discharge to honorable. The applicant seeks relief contending, in effect, that it was an injustice for him to be administratively separated. He contends he should be returned to the duty status he occupied at the time his constitutional rights were violated. The applicant contends he was discharged for engaging in a pattern of misconduct. However, only one 15-6 investigation related to the applicant was provided as evidence against him. Moreover, even in that 15-6 investigation, the Investigating Officer reached conclusions that failed to show beyond a preponderance of the evidence that any serious misconduct took place. Additionally, the Investigative Officer failed to interview key witnesses. Once the investigation was concluded, the chain of command fostered a climate of Unlawful Command Influence once another Soldier initiated a Congressional Inquiry into actions related to the investigation. Initially, the applicant accepted a General Officer Letter of Reprimand with the understanding that he would be continued on active duty. This was evidenced by language in the Memorandum issued by BG J. M. R. which talks about future duty performance of the applicant as a noncommissioned officer. However, once the Congressional was initiated, the chain of command directed that separation action be taken even though it was against the intent of direct supervisors. Moreover, the applicant was denied his right to turn down Article 15 action and request a Courts Martial when he was promised by his chain of command that he would be allowed to remain on active duty. It is believed that in sum, these actions collectively violated the applicant's rights under the 5th, 6th and 14th Amendments to the United States Constitution. In a records review conducted at Arlington, VA on 21 July 2016, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Pattern of Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 16 September 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 May 2013 (2) Basis for Separation: The applicant was informed of the following reasons: having an inappropriate relationship with a junior female Soldier. The relationship involved the transmittal of a nude video and photographs; He engaged in an adulterous relationship with another Soldier not his wife; and He made two false official statements to the investigating officer (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: On 3 June 2013, the applicant requested consideration of his case by an administrative separation board (5) Administrative Separation Board: On 24 July 2013, the administrative separation board, convened. The record is unclear as to what recommendation was made by the board (6) Separation Decision Date / Characterization: 24 August 2013 / General (Under Honorable Conditions). Evidence shows this decision was made by the separation authority after having carefully considered all relevant matters and the composition and recommendations of the administrative separation board. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 June 2008 / NIF b. Age at Enlistment / Education / GT Score: 30 / 3 Years College / 114 c. Highest Grade Achieved / MOS / Total Service: E-7 / 68W48, Health Care Specialist / 17 years, 20 days d. Prior Service / Characterizations: RA, 27 August 1996 to 31 August 1999 / HD RA, 1 September 1999 to 11 October 2001 / HD RA, 12 October 2001 to 16 October 2002 / HD RA, 17 October 2002 to 24 May 2005 / HD RA, 25 May 2005 to 11 June 2008 / HD e. Overseas Service / Combat Service: SWA, Honduras, Korea / Bosnia and Herzegovina (7 February 1997 to 2 June 1997), Kuwait (1 February 2002 to 16 June 2002) f. Awards and Decorations: JSCM, ARCOM-3, AAM-3, AGCM-5, AFEM, GWOTEM, KDSM, NOPDR-3, ASR, OSR-2, NATOMDL g. Performance Ratings: 7 April 2008 to 18 October 2012 (six reports), Among The Best 19 October 2012 to 1 March 2013, Marginal h. Disciplinary Action(s) / Evidentiary Record: GO Article 15, dated 1 March 2013, for on divers occasion between 9 August 2011 and 13 October 2012, failing to obey a lawful general regulation by wrongfully engaging in an inappropriate relationship with SPC X., a woman not his wife, by frequenting parties together and receiving and possessing explicit photographs and video of her, with intent to deceive, made two official false statements to CPT A.L., on 8 November 2012, and wrongfully had sexual intercourse with SFC X, a woman not his wife between 24 April 2011 and 13 May 2011. The punishment consisted of a written reprimand. General Officer Memorandum of Reprimand, for wrongfully engaging in an inappropriate relationship with SPC C.Q., a Soldier assigned to the same unit as him and committing adultery with SFC M.J., and making multiple false official statements to an investigating officer during the course of an Army Regulation 15-6 into his actions. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 30 April 2013, shows the applicant was diagnosed with an Axis I for depression by HX. It was noted in the remarks that the applicant had no duress, coercion, or mental reservation shown at interview. The applicant denied SI, HI. Mental status evaluation was considered to be within normal limits. The applicant was screened for PTSD and the score obtained was slightly elevated however it was not to be considered a factor. The applicant's motor vehicle accident and the TBI screen was not given and no comment could be made regarding features of TBI. The applicant was cleared from a behavioral health standpoint to continue to process for Chapter 14-12. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; appeal of his Article 15 and GOMOR; several NCO Evaluation Report's; letters of support; certificates for awards and decoration received; and several documents relating to the administrative actions against SPC C.Q and SFC M.J. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. 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. Secretary of Defense Memorandum for Secretaries of the Military Departments (Subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder, dated September 3, 2014), provided guidance to help ensure consistency across the military services in consideration of PTSD relevant to Service Members' discharges. "Liberal consideration will be given in petitions for changes in characterization of service to service treatment record entries which document one of more symptoms which meet the diagnostic criteria of Post-Traumatic Stress Disorder (PTSD) or related conditions. Special consideration will be given to Department of Veterans Affairs (VA) determinations which document PTSD or PTSD-related conditions connected to military services. In cases where Service Records or any document from the period of service substantiated the existence of one or more symptoms of what is now recognized as PTSD or PTSD-related condition during the time of service, liberal consideration will be given to finding that PTSD existed at the time of service. Liberal consideration will also be given in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contain narratives that support symptomatology at the time of service, or when any other evidence which may reasonably indicate that PTSD or a PTSD-related disorder existed at the time of discharge which might have mitigated the misconduct that caused the under other than honorable conditions characterization of service. This guidance in not applicable to cases involving pre- existing conditions which are determined not to have been incurred or aggravated while in military service." "Conditions documented in the 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 PTSD or PTSD related conditions 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 under other than honorable conditions characterization of service. Correction boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD or PTSD-related conditions as a causative factor 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. Correction Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct." 8. DISCUSSION OF FACT(S): The applicant through legal counsel requests an upgrade of his general (under honorable conditions) discharge to honorable. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms the applicant's discharge was appropriate because the quality of his 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. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained on Active Duty. The applicant seeks relief contending that it was an injustice for him to be administratively separated. He contends he should be returned to the duty status he occupied at the time his constitutional rights were violated. The applicant contends he was discharged for engaging in a pattern of misconduct. However, only one 15-6 investigation related to the applicant was provided as evidence against him. Moreover, even in that 15-6 investigation, the Investigating Officer reached conclusions that failed to show beyond a preponderance of the evidence that any serious misconduct took place. Additionally, the Investigative Officer failed to interview key witnesses. Once the investigation was concluded, the chain of command fostered a climate of Unlawful Command Influence once another Soldier initiated a Congressional Inquiry into actions related to the investigation. Initially, the applicant accepted a General Officer Letter of Reprimand with the understanding that he would be continued on active duty. This was evidenced by language in the Memorandum issued by BG J. M. R. which talks about future duty performance of the applicant as a noncommissioned officer. However, once the Congressional was initiated, the chain of command directed that separation action be taken even though it was against the intent of direct supervisors. Moreover, the applicant was denied his right to turn down Article 15 action and request a Courts Martial when he was promised by his chain of command that he would be allowed to remain on active duty. It is believed that in sum, these actions collectively violated the applicant's rights under the 5th, 6th and 14th Amendments to the United States Constitution. The applicant's contentions were noted; however, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. As noted in the notification memorandum and the recommendation from the chain of command, it was recommended that the applicant be discharge with an under other than honorable conditions discharge for his acts of misconduct. It was also noted that the GOMOR does state "I trust that your future duty performance will reflect the degree of professionalism expected of every NCO assigned to this command." It was also stated in that same GOMOR "As a senior noncommissioned officer the applicant was charged with the responsibility of setting the example for Soldiers to emulate and conducting himself above reproach. He was charged with leading, mentoring, and developing all junior Soldiers within his unit. Clearly, his actions fell well below the standards expected of a senior noncommissioned officer in the United States Army." By regulation, a under other than honorable conditions (UOTHC) discharge is normally appropriate for a member separated by reason of a pattern of misconduct. It appears the applicant's generally good record of service was the basis for his receiving a GD instead of the normal UOTHC discharge. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant's discharge is commensurate with his overall service record. 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. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 21 July 2016, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Issue a New Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: No Change f. Restore (Restoration of) Grade to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20150014629 5