1. Applicant's Name: a. Application Date: 20 March 2017 b. Date Received: 1 May 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of his general (under honorable conditions) discharge to honorable and a narrative reason change. The applicant seeks relief contending, in effect, the charges against applicant are exaggerated in a light grossly unfavorable to him. In actuality, the conduct he engaged in did not constitute an assault or maltreatment. The applicant was the victim of a climate where commanders felt pressured to react in a harsh manner against anyone accused of an act that might be construed as sexual assault or sexual harassment. Instead of weighing all facts in this case and listening to all sides, the command acted in a way that avoided criticism from the press, special interest groups, and politicians. At the time of the alleged offenses, applicant was experiencing extreme difficulties in his personal life, having suffered through failed marriages, overseas assignments/deployments, financial difficulties, and homelessness in late 2013. This was not understood by his chain of command. Any alleged misconduct is aberrational and inconsistent with applicant's significant service record and accomplishments. His behavior, even when taken in the light least favorable to him, is a sign that he was experiencing mental and emotional problems. The current characterization is unfairly stigmatizing. Per the Board's Medical Officer, based on the information available for review at the time, his misconduct was sexual, and involved among other things, unwelcome, unconsented touching of a SPC soldier, including kissing her stomach after coming into a bedroom at a party they were both at. His AHLTA diagnoses include Adjustment Disorder with Anxiety and Depressed Mood, Depression, Fatigue, Head Injury, Male Erectile Dysfunction, Marital Problem, Occupational Problem, and PTSD (2015, 1 visit). The PTSD diagnosis was given by a non-psychiatric, non- behavioral health provider without any explanation in a note for patient whose preventing complaint was sore throat. In a note on 02 September 2015, he was still denying the sexual misconduct charge. The note is thorough for history and concluded with a diagnosis of Occupational Disorder, a diagnosis consistent with the history in the note. JLV showed the applicant to have an 80% VA SC disability rating. His problem list included Concussion with Loss of Consciousness of 30 minutes or less. The totality of evidence is insufficient to explain away his misconduct towards the female soldiers, conduct which in any case he has denied. PTSD would not mitigate this misconduct, which he has a history of denying. Finally, TBI does not mitigate his sexual misconduct. In a personal appearance hearing conducted at Arlington, VA on 19 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, Chapter 4-2B / JNC / NA / General (Under Honorable Conditions) b. Date of Discharge: 14 September 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 24 July 2014 (2) Basis for Separation: The applicant was informed to show cause for retention on active duty under the provisions of AR 600-8-24, paragraphs 4-2b for misconduct, moral, or professional dereliction. The specific reasons for elimination: Substantiated derogatory activity resulting in a General Officer Article 15, which was filed in his Army Military Human Resource Record for: Maltreatment of junior enlisted Soldier; An inappropriate or the appearance of an inappropriate relationship with a junior enlisted Soldier. Conduct unbecoming an officer as indicated by the above-referenced item. (3) Recommended Characterization: On 3 December 2014, a Board of Inquiry recommended the applicant be involuntarily eliminated from the Army with a General (Under Honorable Conditions). (4) Legal Consultation Date: NIF (5) GCMCA Recommendation Date / Characterization: On 6 January 2015, the GCMCA recommended that the applicant be involuntarily eliminated from service / General (Under Honorable Conditions). (6) DA Ad Hoc Review Board: 20 February 2015 (7) Deputy Assistant Secretary of the Army (Review Boards) Decision: 10 August 2015 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Appointment: 18 December 2007 / Indefinite b. Age at Appointment / Education / GT Score: 30 / Associate's Degree / NA c. Highest Grade Achieved / MOS / Total Service: CW2 / 948B0, Electronic Systems Maintenance / 19 years, 2 months, 25 days d. Prior Service / Characterizations: RA, 20 June 1996 - 24 January 2000 / HD RA, 25 January 2000 - 20 June 2002 / HD RA, 21 June 2002 - 7 May 2007 / HD RA, 8 May 2007 - 17 December 2007 / HD e. Overseas Service / Combat Service: Germany, Korea, SWA / Afghanistan (10 April 2012 - 5 January 2013) f. Awards and Decorations: ACM-CS, BSM, MSM, ARCOM-2, AAM-5, ASUA, AGCM-3, NDSM, GWOTSM, KDSM, NCOPSR-3, ASR, OSR-3, NATOMDL g. Performance Ratings: 18 December 2007 - 31 May 2010 / Best Qualified 1 June 2010 - 31 May 2011 / Best Qualified 1 June 2011 - 31 May 2012 / Best Qualified 31 May 2012 - 30 May 2013 / Best Qualified h. Disciplinary Action(s) / Evidentiary Record: CID Report of Investigation - Initial Final, dated 12 February 2014, reflects an investigation established probable cause to believe the applicant committed the offense of Abusive Sexual Contact when he touched PFC M in a sexual manner without her consent. GO Article 15, dated 20 May 2014, for maltreating PFC M, by putting his mouth on her stomach and touching her breasts; and, for knowingly fraternizing with PFC M, an enlisted person, by flirting and lying in bed with her (14 December 2013). The punishment consisted of a forfeiture of $2,451 pay; restriction for 12 days; and a written reprimand. Punitive General Officer Memorandum Of Reprimand, dated 20 May 2014, reflects that the applicant was reprimanded for his conduct stated in the GO Article 15. Report of Proceedings by Investigating Officer / Board of Officers, dated 3 December 2014, reflects the Board found the allegation that the applicant maltreated a junior Soldier and had an inappropriate or the appearance of an inappropriate relationship with a junior enlisted Soldier that resulted in a General Officer Article 15, dated 20 May 2014, filed in his OMPF, and a Letter of Reprimand dated 20 May 2014, was supported by the preponderance of evidence. This conduct was unbecoming an officer, and was properly considered misconduct, and moral or professional dereliction as defined in AR 600-8-24, paragraph 4-2(b). The Board recommended the applicant's separation form active service with a General (Under Honorable Conditions) discharge. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 4 August 2014, the examining medical physician noted in the comments section: depressed; insomnia; head injury; and, attempted suicide. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 with allied legal brief. 6. POST SERVICE ACCOMPLISHMENTS: Applicant has maintained constant employment since separation. 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, 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 commissioned officers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4-2b, unacceptable conduct. 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, through 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 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 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 record contains no evidence of arbitrary or capricious actions by the command. The applicant contends the narrative reason for the discharge should be changed. However, the applicant was separated under the provisions of Chapter 4, paragraph 4-2b, AR 600-8-24 with a honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Unacceptable Conduct," and the separation code is "JNC." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends the charges against him were exaggerated and he was the victim of a climate where commanders felt pressured to react in a harsh manner against anyone accused of an act that might be construed as sexual assault or sexual harassment. Further, he contends this characterization of service has unfairly stigmatized him. However, 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 applicant contends that he was having personal issues that affected his behavior and ultimately caused him to be discharged. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. The applicant contends the event that caused his discharge from the Army was an aberration and an isolated incident. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends that he was experiencing mental and emotional problems at the time of his misconduct. However, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. The applicant's service record is void of a mental status evaluation. It appears the applicant's chain of command determined that he knew the difference between what was right and wrong. The applicant contends that he had good service which included a combat tour. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. The third party statements provided with the application speak highly of the applicant's performance. They all recognize his good conduct either while in or after leaving the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 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. 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): None listed on the hearing data sheet. b. The applicant presented the following additional contention(s): None listed on the hearing data sheet. c. Witness(es) / Observer(s): 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 19 March 2018, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 11. 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. Change SPD Code to: No Change f. Change RE Code 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 AR20170007544 6