1. Applicant's Name: a. Application Date: 26 December 2016 b. Date Received: 3 February 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade his under other than honorable conditions discharge to honorable and to change the narrative reason for his discharge. The applicant seeks relief contending, in pertinent part and in effect, his discharge with an RE code of 4 was inequitable and an act of reprisal. After witnessing several accounts of conduct unbecoming by senior leadership within his command, and their violations of their oaths and the rights of the Soldiers entrusted to them, he spoke out. His documentary evidence shows that the command violated both federal law and Army regulations several times in the way he was treated and discharged. After nearly 18 months of persecution and mistreatment, he was emotionally taxed and ready to leave the Army, although it does not justify the continued inequity applied to his discharge. The selected board members by the command were found guilty by the IG in his complaints, his military counsel did not attend the board, and the board spent less than 20 minutes determining the characterization of his service. After the findings, he was given three days' notice that his service was over. He was denied any federally mandated transition assistance, and the doctor-recommended and medical retirement prioritized by regulation. He asks for a determination on whether his current discharge is an honest description of his service. Per the Board's Medical Officer, a voting member, based on the information available for review in the service record, AHLTA, and JLV, the applicant was diagnosed with PTSD. However, due to the nature of the misconduct, PTSD does not mitigate the misconduct. He had sustained repeated misconduct "with the subject of recruiting" efforts and violated lawful general regulations during this sustained sexualized relationship. This kind of behavior is not caused by or mitigated by PTSD. In a records review conducted at Arlington, VA on 9 May 2018, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, block 27 contains the erroneous reentry code of 4. In view of the error, the Board directed an administrative correction to block 27 to read RE-3, as required by Army Regulations. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 15 July 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 17 February 2015 (2) Basis for Separation: The applicant was informed of the following reasons: In that he did, between 1 December 2012 and 1 May 2013, violate a lawful general regulation, to wit: paragraphs 2-1a(1)(a) and 2-1a(1)(d), USAREC Regulation 600-25, dated 4 February 2009, by wrongfully engaging in romantic, social activities of a personal and unofficial nature with Ms. X, a subject of recruiting efforts, in violation of Article 92, UCMJ. In that he did, between 1 December 2012 and 1 May 2013, violate a lawful general regulation, to wit: paragraph 2-1a(1 ){b), USAREC Regulation 600-25, dated 4 February 2009, by wrongfully transporting Ms. X, a subject of recruiting efforts, in his privately-owned vehicle and sharing lodging with Ms. X., in violation Article 92, UCMJ. In that he did, between 1 December 2012 and 1 May 2013, violate a lawful general regulation, to wit: paragraph 2-1a(1)(e), USAREC Regulation 600-25, dated 4 February 2009, by wrongfully allowing Ms. X., a subject of recruiting efforts, into his private dwelling, in violation of Article 92, UCMJ. In that he did, between 1 December 2012 and 1 May 2013, violate a lawful general regulation, to wit: paragraph 2-1a(4), USAREC Regulation 600-25, dated 4 February 2009, by wrongfully meeting with a subject of recruiting efforts, Ms. X., of the opposite gender, without at least one other qualifying person, in violation of Article 92, UCMJ. In that he, a married man, did, between 15 January 2013 and 24 May 2013, wrongfully have sexual intercourse with Ms. X., a woman not your wife, in violation of Article 134, UCMJ. In that he did, between 1 May 2013 and 30 September 2013, violate a lawful general regulation, to wit: paragraph 4-15a, Army Regulation 600-20, dated 18 March 2008, by wrongfully engaging in a romantic relationship with SPC X., an initial entry training trainee that was not required by the training mission, in violation of Article 92, UCMJ. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 23 February 2015 (5) Administrative Separation Board: 21 May 2015, the Board recommended an Under Other Than Honorable Conditions, upon making the following findings: The applicant, in violations of Article 92, UCMJ, and USAREC Regulation 600-25, committed the following offenses that warrant separation: engage in wrongful romantic, social activities of a personal nature with Ms. X., then subject of recruiting efforts, and transport Ms. X., then subject of recruiting efforts, in his personal vehicle and shared lodging with Ms. X.. The applicant, in violations of Article 92, UCMJ, and USAREC Regulation 600-25, committed the following offenses that do not warrant separation: wrongfully allow Ms. X., then subject of recruiting efforts, into his private residence, and violate the USAREC buddy policy by meeting with Ms. X., then subject of recruiting efforts without a qualifying person present. The applicant, in violation of Article 134, UCMJ, did wrongfully have sexual intercourse with Ms. X., a woman not his wife, and this offense warrants separation. The applicant, in violation of Article 92, UCMJ, and USAREC Regulation 600-25, did wrongfully engage in a romantic relationship with SPC X., an initial entry trainee, and this offense warrants separation. (6) Separation Decision Date / Characterization: 26 June 2015 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 April 2012 / Indefinite b. Age at Enlistment / Education / GT Score: 18 / HDS Graduate / 111 c. Highest Grade Achieved / MOS / Total Service: E-7 / 35P1L, Cryptologic Linquist / 15 years, 6 months, 29 days d. Prior Service / Characterizations: DEP (17 December 1999 to 12 September 2000) /NA RA (13 September 2000 to 8 January 2006) / HD RA (9 January 2006 to 14 October 2009) / HD RA (15 October 2009 to 29 April 2012) / HD e. Overseas Service / Combat Service: Germany, SWA / Iraq (30 November 2008 to 30 March 2009), Afghanistan (3 April 2005 to 31 March 2006) f. Awards and Decorations: ARCOM-3; AAM; AGCM-4; NDSM; ACM-2CS; ICM-CS; GWOTSM; NCOPDR-3; ASR; OSR-3; MOVSM-2; CAB; MUC-2; ASUA g. Performance Ratings: Three NCOERs rendered during period of service under current review: 8 May 2011 thru 7 May 2012, Among the Best 8 May 2012 thru 7 May 2013, Among the Best 8 May 2013 thru 22 July 2014, RFC, Marginal h. Disciplinary Action(s) / Evidentiary Record: General Officer Memorandum of Reprimand, dated 6 May 2014, indicates the applicant was reprimanded for having an inappropriate adulterous relationship with SPC M., a subject of recruiting efforts, in violations of USAREC Regulation 600-25, paragraph 2-1a, and Articles 92 and 134, UCMJ. An Administrative Separation Board Report of Proceedings, Findings and Recommendations, and Summary of Proceedings is described at the preceding paragraph 3c(5). FG Article 15, dated 13 August 2014, for wrongfully engaging in an unofficial social activity with a subject of recruiting efforts on 22 February 2013, and violate a lawful general regulation, USAREC Regulation 600-25, paragraph 2-1a(4), by wrongfully meeting with a subject of recruiting efforts, a member of the opposite gender, without at least one qualifying person present on 22 February 2013. Negative counseling statements for the commander initiating an involuntary separation action, and malingering. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 4 November 2014, indicates an "AXIS I:" diagnosis of "Post Traumatic Stress Disorder, Chronic," and a positive screen for TBI. Physical Profile, dated 3 February 2014, indicates the applicant was provided a profile for TBI, low back pain, PTSD, depression, and anxiety. Report of Medical History, dated 2 February 2015, indicates the applicant and the examiner noted behavioral health issues and treatment, involving PTSD and TBI. 5. APPLICANT-PROVIDED EVIDENCE: Online application; GOMOR Rebuttal, dated 19 May 2014, rendered by a TDS JA counsel; memorandum, dated 5 May 2014; three character reference/supporting statements; DFAS Military Net Pay Advice; July 2014 MyPay LES; recommendation for award, dated 27 August 2013; two NCOERs; ERB; Article 15; defense points list; Article 138 Request for Redress, dated 19 August 2014; LeaderZone Printouts; ERB; GOMOR with filing recommendations/determination, dated 6 May 2014; counseling statement, dated 13 May 2014; Receipt of Reprimand; Petition for Dissolution of Marriage, dated 15 February 2013; Article 138 Request for Redress, dated 19 June 2014; Article 15 Appeal; RFC NCOER; congressional correspondence and its associated documents, dated 15 October 2014; seven statements on behalf of or reference the applicant's Article 15 hearing, dated 24 October 2014; timeline of events; VA letter, dated 19 April 2016; referral of respondent memorandum, dated 20 March 2015; commander's inquiry memorandum, dated 18 March 2014; appointment as investigating officer memorandum, dated 5 February 2014; our registry document, dated 18 January 2014, with depicted items; depiction of graduation card; photo; five pictures depicting items; four Privacy Act statements, dated 21 February 2014; four rights warning/waiver certificates; four sworn statements; telephonic sworn statement, dated 3 March 2014; email correspondence, dated 3-4 March 2014; two memoranda for record, dated 3 and 26 March 2014; and Whistleblower Reprisal Questionaire. 6. POST SERVICE ACCOMPLISHMENTS: None provided 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 14-12c 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. 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 14-12c, Misconduct (Serious Offense). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3. National Defense Authorization Act 2017 provided 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) or Traumatic Brain Injury (TBI) in connection with combat or sexual assault or sexual harassment as a basis for discharge review. Further, it provided 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; as a basis for the discharge. In August 2017, the Office of the Under Secretary of Defense for Personnel and Readiness provided further clarifying guidance 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. 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. 8. DISCUSSION OF FACT(S): The applicant requests to upgrade his under other than 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 military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the incidents of misconduct, the applicant compromised the special trust and confidence placed in an NCO, and he knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge. The service record further confirms that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as 4. The discharge packet confirms the separation authority approved the discharge by reason of misconduct (serious offense). Soldiers processed for misconduct (serious offense) will be assigned an SPD Code of JKQ and an RE Code of 3. The applicant contends that a review and a determination should be made on whether his current discharge is an honest description of his service. 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 and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service and to change the narrative reason for his discharge. The applicant's contentions that his discharge was equitable and an act of reprisal for the reasons he cited, including the circumstances and events surrounding the administrative separation board proceedings, were carefully reviewed. 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 for an upgrade of the discharge and to change the narrative reason for his discharge. Although the applicant did not directly present any behavioral health issues, a careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues along with notable service-connected 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 applicant requests to change the 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 Chapter 14, paragraph 14-12c is "Misconduct (Serious Offense)," and the separation code is JKQ. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 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 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 9 May 2018, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, block 27 contains the erroneous reentry code of 4. In view of the error, the Board directed an administrative correction to block 27 to read RE-3, as required by Army Regulations. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Issue a New Separation Order: Yes 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 / RE-3 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 AR20170001506 2