1. Applicant's Name: a. Application Date: 14 March 2017 b. Date Received: 1 May 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of under other than 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, the applicant's appointed legal counsel erred by wrongly informing the applicant of not having a right to an administrative separation board-the applicant did not make an informed or legally-binding waiver pursuant to Army Regulation, paragraph 3-7e. The counsel contends the applicant's "Plea Agreement" does not overcome this due process. Post-service accomplishments merit an upgrade-since discharge, the applicant has led an exemplary life. Resume documents employment and experiences. The current discharge disqualifies the applicant from accessing benefits. Given an exemplary post-service and overall excellent military service, it is inequitable for the applicant to lose access to benefits. The punishment and the characterization of service are excessive, because the misconduct that led to discharge "was isolated and aberrational." The applicant "has no other disciplinary actions" in the record. Notable achievements and awards, and character references attest to good character, strong work ethic, and value as a dedicated Soldier." Thus "the unfavorable discharge was not warranted." The applicant received the maximum punishment in a summary court-martial for the offense that led to discharge. (The counsel detailed the events and circumstances surrounding the adultery and sexual assault charges. The Article 32 investigation had "concluded that reasonable grounds did not exist to support a sexual assault charge and that the elements of the charge were not met." Thereby, the investigating officer recommended the charge be dismissed and the applicant only receive a GOMOR for having an inappropriate contact with a woman, not the wife, while married.) The applicant was a target of harassment because of the allegations, even after leaving the Army, such as "public harassment through Facebook posts," despite, "the fact that the Army dropped the sexual assault charge." (Note that the counsel presented attachments following each issue addressed.) Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV), notes indicate diagnoses of Adjustment Disorder with Depressed Mood and Depression with Anxiety. There are no VA records other than a letter of ineligibility. In summary, although the applicant had a BH diagnosis, it is not migrating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 8 February 2019, and by a 5-0 vote, the Board determined that the characterization of service was too harsh based on the applicant's quality of service, to include combat service, a prior period of honorable service, post-service accomplishments, and the circumstances surrounding the discharge (i.e. in-service diagnosis of OBH), and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to general under honorable conditions. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. (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-3 / Under Other Than Honorable Conditions b. Date of Discharge: 9 July 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 27 May 2014 (2) Basis for Separation: The applicant committed adultery. (Note that the commander further informed the applicant at paragraph 8, that he "would have been entitled to a hearing before an administrative board however, in [his] offer to plead guilty dated 26 March 2014, [he] waived any right to a hearing as it relates to an administrative separation.") (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 28 May 2014 (5) Administrative Separation Board: 26 March 2014, unconditionally waived his right to an administrative separation board in an accepted Offer to Plead Guilty (6) Separation Decision Date / Characterization: 20 June 2014 / Under Other Than Honorable Conditions (The GCMCA stated that on "26 March, [the applicant] unconditionally waived his right to an administrative separation board.") 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 December 2013 / NIF (But according to DD Form 214, retained 194 days for the convenience of the government) b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 111 c. Highest Grade Achieved / MOS / Total Service: E-4 / 25Q10, Multichannel Transmission Systems Operator/Maintainer / 5 years, 15 days d. Prior Service / Characterizations: RA (1 June 2009 to 27 December 2013) / HD e. Overseas Service / Combat Service: Korea, SWA / Afghanistan (1 September 2011 to 4 July 2012) f. Awards and Decorations: ARCOM; AAM-2; AGCM; NDSM; ACM-CS; GWOTSM; KDSM; ASR; OSR-2; NATO MDL; CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge Sheet indicates that on 16 January 2014, a charge of violating Article 134, UCMJ, for wrongfully having a sexual intercourse with SPC E.R., a woman not the applicant's wife, was preferred and referred to trial by a summary court-martial on 14 April 2014. Memorandum, dated 10 April 2014, rendered by a summary court-martial officer, informed the applicant of a summary court-martial trial scheduled for 16 April 2014, which the applicant acknowledged receiving on 15 April 2014 (Note that there is no record of the result of trial by a summary court-martial available). Negative counseling statements for administrative separation being initiated. Memorandum for Record, undated, rendered by the brigade commander, provided additional facts and circumstances that explained the decision to separate the applicant with an under other than honorable conditions characterization of service. Specifically, that the applicant's offer to plead guilty to violating Article 134, UCMJ, on 26 March 2014, was accepted; that the three specifications of violating Article 120, UCMJ, were dismissed; and that as part of his offer, he agreed to waiving right to an administrative separation board with a characterization of service of under other than honorable conditions. i. Lost Time / Mode of Return: 24 days (Military Confinement from 16 April 2014 to 9 May 2014 (NIF)) / (NIF) j. Diagnosed PTSD / TBI / Behavioral Health: Mental Status Evaluation Report, dated 13 May 2014, indicates an "AXIS I" diagnosis of "Depression with Anxiety," a positive screening for PTSD, and remarks that there was no intention to initiate an MEB referral for psychiatric reasons and that he was cleared psychiatrically for administrative processing. Report of Medical History, dated 13 and 15 May 2014, indicates the applicant and examiner noted behavioral health issues. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 14 March 2017; attorney-authored brief with attachments; DD Form 214; election of rights memorandum, dated 28 May 2014; Offer to Plead Guilty; applicant's resume; certificate of achievement; nine character reference/supporting statements; accepted plea agreement with stipulation of fact, dated 26 March 2014; three letters (Ms. R., Representative Kingston, and Secretary of the Army); Article 32 Investigative report and recommendation; and Facebook postings. 6. POST SERVICE ACCOMPLISHMENTS: The counsel on behalf of the applicant states, in effect, since the applicant's discharge, he has led an exemplary life working as a Customer Service Engineer as a contractor, and his resume documents his employment and achievements. 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 an upgrade of 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 serious incident of misconduct, the applicant knowingly risked a military career and marred the quality of his service that ultimately caused his discharge from the Army. The applicant contends the discharge was unjust because of the numerous issues presented in his counsel's brief; specifically, that due to his legal counsel erring by not properly informing him of his right to a hearing in an administrative separation board pursuant to Army Regulation, paragraph 3-7e, he did not make an informed or legally-binding waiver. However, paragraph 3-7f, further stipulates that as "an exception to e, above, a discharge under other than honorable conditions may be issued without board action if ... (3) Waives his/her right to board action." Documentary evidence indicates the applicant waived his right to an administrative separation board hearing in an accepted "Offer to Plead Guilty" as part of a summary court-martial proceedings. There is also 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 was unjustly discharged. The applicant's statements, by his counsel's brief, 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. In consideration of the applicant's service accomplishments and quality of his service prior to the incident of misconduct, and his post-service accomplishments, 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 contends that his current discharge disqualifies him from accessing his benefits, and that given his exemplary post-service and his overall excellent military service, it is inequitable for him to lose access to his benefits. However, eligibility for veterans' benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. Although the applicant did not present any behavioral health issues, a careful review of the available record indicates that behavioral health issues 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, and as approved by the separation authority. 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. 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 8 February 2019, and by a 5-0 vote, the Board determined that the characterization of service was too harsh based on the applicant's quality of service, to include combat service, a prior period of honorable service, post-service accomplishments, and the circumstances surrounding the discharge (i.e. in-service diagnosis of OBH), and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to general under honorable conditions. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General Under Honorable Conditions c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / 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 AR20170007581 1