1. Applicant's Name: a. Application Date: 11 September 2017 b. Date Received: 13 September 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable and to change the narrative reason for his discharge. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, while the applicant received a GOMOR in June 2008, for engaging in an inappropriate relationship with an enlisted Soldier in his unit, he accepted responsibility and admitted the relationship. In a subsequent BOI, the board recommended an honorable discharge, and his chain of command had supported his retention. However, that elimination action was returned for rehearing based on a legal error in the proceedings. In a re-notification on 21 December 2012, a second BOI incorporated allegations of sexual harassment and misconduct made by Ms. X. and Ms. Ms. X alleged engaging in a sexual relationship with the applicant between September 2010 and March 2011, which became the subject of two commander's inquiries and AR 15-6 investigations. The first three investigations determined the allegations to be unfounded, but the fourth investigation in March 2012, found the allegations of an inappropriate relationship and sexual harassment substantiated and the applicant received a GOMOR in May 2012. The second BOI on 11 June 2013, was conducted almost five years after the first GOMOR. The applicant's current appeal is focused on the new allegations of 2010, which he consistently denies (the counsel detailed the events surrounding the allegations made by Ms. X and Ms. X., and the investigation by LTC X.). The counsel concluded the applicant was left with a biased investigation, flimsy evidence, and a GD. The applicant was awarded the Purple Heart Medal for injuries he sustained in combat, and an ARCOM with Valor-he is a wounded warrior. Despite the four investigations and suffering tremendously, the applicant excelled in his duties. Per the Board's Medical Officer, based on the information available for review at the time, case files, AHLTA and JLV reviewed. AHLTA diagnoses include Chronic PTSD, Adjustment Disorder with Depression and Migraine Headaches. Applicant was first diagnosed with PTSD in 2012 at which time he enrolled in and completed CPT (Cognitive Processing Therapy). The CPT reduced some of his PTSD symptoms but, for the most part, the symptoms remained. Applicant was also diagnosed with mild TBI based on IED blast in Iraq in 2005 during which he had a several second span of loss of consciousness with no dizziness, blurred vision or memory issues. He was subsequently diagnosed with migraine headaches. VA records indicate he is 50% SC for PTSD (combat related) and 30% SC for migraine headaches. Based on the available information, the applicant does not have a mitigating BH disorder. Neither PTSD nor mTBI are mitigating for sexually based offenses. In a records review hearing conducted at Arlington, VA on 2 March 2018, 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: Unacceptable Conduct / AR 600-8-24, Paragraph 4-2b / JNC / NA / General (Under Honorable Conditions) b. Date of Discharge: 21 July 2015 c. Separation Facts: (BOI Files as attachments at AR20140016381) (1) Date of Notification of Intent to Separate: 21 December 2012 (2) Basis for Separation: The applicant was informed of the following reasons: A derogatory information file in his OMPF consisting of an adverse information, a GOMOR, dated 14 March 2012, for: engaging in an improper senior-subordinate relationship, in violation of AR 600-20; committing adultery with an individual in his unit, in violation of the UCMJ; sexually harassing individuals in his unit, in violation of AR 600-20 and the Army's Equal Opportunity program; and providing a false official statement to a prior AR 15-6 investigating officer, in violation of the UCMJ. Acts of personal misconduct as indicated by the referenced GOMOR. Conduct unbecoming an officer as indicated by the referenced GOMOR. (3) Recommended Characterization: General (Under Honorable Conditions), and the Battalion Commander recommended retention (4) Legal Consultation Date: 1 February 2013 (5) Board of Inquiry / DA Board of Review for Eliminations / GCMCA Recommendations: On 13 June 2013, a Board of Inquiry recommended a General (Under Honorable Conditions) discharge. On 28 August 2013, the GCMCA recommended a General (Under Honorable Conditions) discharge. On 8 May 2014, a DA Board of Review for Eliminations recommended a General (Under Honorable Conditions) discharge. (6) Separation Decision Date / Characterization: 25 June 2015 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Appointment: 8 March 2003 / Indefinite (For period of service under current review, applicant was MOB, pursuant to AD Orders, with report date of 26 February 2007, for indefinite period (as amended by Orders, dated 31 August 2009)) b. Age at Appointment / Education / GT Score: 24 / Bachelor of Science Degree / NA b. Highest Grade Achieved / MOS / Total Service: O-3/CPT / 12A Engineer, General 19 years, 2 months, 23 days d. Prior Service / Characterizations: ARNG (29 April 1996 to 8 June 1997) / NA IADT (9 June 1997 to 31 July 1997) / UNC ARNG (1 August 1997 to 7 March 2003) / HD ARNG (8 March 2003 to 24 July 2004) / NA OIF MOB (25 July 2004 to 14 February 2007) / HD USAR (15 February 2007 to 25 February 2007) / NA e. Overseas Service / Combat Service: SWA / Iraq (15 January 2005 to 23 December 2005), f. Awards and Decorations: PH; ARCOM-V DEV; AAM-2; ARCAM; NDSM; ICM; GWOTSM; NCOPDR; ASR; OSR; AFRM-M DEV; CAB g. Performance Ratings: Eight OERs rendered during period of service under current review: 1 December 2006 thru 30 November 2007, Satisfactory Performance, Promote 27 February 2008 thru 31 October 2008, Satisfactory Performance, Promote 1 November 2008 thru 30 April 2009, Satisfactory Performance, Promote 15 October 2009 thru 14 October 2010, Outstanding Performance, Must Promote 15 October 2010 thru 14 October 2011, Outstanding Performance, Must Promote 15 October 2011 thru 14 October 2012, Outstanding Performance, Must Promote 15 October 2012 thru 14 October 2013, Outstanding Performance, Must Promote 15 October 2013 thru 14 October 2014, Unsatisfactory / Unqualified h. Disciplinary Action(s) / Evidentiary Record: General Officer Memorandum of Reprimand (GOMOR), dated 3 June 2008, indicates the applicant was reprimanded for adultery, fraternization, and failing to obey an order/regulation and AR 600-20, by engaging in an improper and sexual relationship with MSG X, an enlisted Soldier. Additionally, for conduct unbecoming of an officer and indecent language, and violating AR 600-20 by sexually harassing SPC X, an enlisted Soldier. General Officer Memorandum of Reprimand, dated 14 May 2012, indicates the applicant was reprimanded for engaging in an improper senior-subordinate relationship, committing an adultery, sexually harassing individuals in his unit, and making a false official statement. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: No specific PTSD diagnosis; however, according to an "Initial Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionaire, dated 24 October 2014, remarks provided by a Psychiatrist/Psychologist indicate, in pertinent part, that based on the examination, the applicant "needs to seek follow up treatment," and that he "requires individual psychotherapy and possibly psychotropic medication (if deemed necessary by a psychiatrist)." 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 11 September 2016, with counsel-authored brief; DD Form 214; memorandum, dated 8 December 2011 (first BOI); memorandum, dated 3 April 2012 (returned elimination action for a rehearing by a new BOI); sworn statement by Ms. X.; second BOI findings and recommendation; sworn statement by Mr. X.; findings and recommendations of an investigation; sworn statement by Ms. X; sworn statement by Mr. X.; sworn statement by Mr. X.; memorandum, dated 21 August 2012, rendered by Ms. X.; summarized transcripts of BOI proceedings, dated 11 June 2013; portion of MAJ X., investigating officer report; memorandum, dated 31 March 2012, findings and recommendations of an AR 15-6 investigation; sworn statement by Ms. X.; sworn statement by Ms. X.; two sworn statements by X.; email correspondence, dated 1 August 2013; two memoranda for record, dated 1 August 2013 and 10 March 2012; Declaration of S.W.; and memorandum for record, dated 10 March 2012. 6. POST SERVICE ACCOMPLISHMENTS: None provided with the application. 7. REGULATORY CITATION(S): Army Regulation 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers. Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security. A discharge of honorable, general (under honorable conditions), or under other than honorable conditions characterization of service may be granted. 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 "JNC" as the appropriate code to assign enlisted Officers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4-2b, unacceptable conduct. 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 requests an upgrade of his general (under honorable conditions) discharge to honorable and to change the narrative reason for his discharge. The applicant's available record of service, and the issues and documents submitted with his application were carefully reviewed. The record confirms that 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 Army officers. It brought discredit on the Army and was prejudicial to good order and discipline. The applicant provided no corroborating or sufficient evidence demonstrating that either the command's action was erroneous or that his service mitigated the unacceptable conduct or poor duty performance, such that he should have been retained. Further, the applicant's available record contains no evidence of arbitrary or capricious actions by the command. The applicant contends the discharge was unjust because there were false accusations and impartial investigations that led to his discharge. However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he may have been unjustly discharged. The applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further sufficient evidence has been provided with the request to upgrade his discharge and to change the narrative reason for his discharge. Furthermore, the applicant requests to change the narrative reason for his separation; however, the narrative reason for his separation is governed by specific directives. The narrative reason specified by AR 635-5-1 for a discharge under AR 600-8-24, chapter 4, paragraph 4-2b is "Unacceptable Conduct," and the separation code is JNC. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, the Board can find that his complete period of service was or was not sufficiently mitigating to warrant an upgrade of his characterization of service and to change the narrative reason for his discharge. Although the applicant did not specifically present any behavioral health issues, a careful review of the available record indicates the applicant's behavioral health issues along with post- traumatic stress disorder symptoms existed. If the Board determines the applicant's behavioral health issues were significant contributing factors to his misconduct, it can grant appropriate relief by changing the reason for separation and/or the characterization of service. 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 hearing conducted at Arlington, VA on 2 March 2018, 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 new Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. SPD/RE Code Change to: No change f. Restoration to Grade: 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 AR20160015124 6