1. Applicant's Name: a. Application Date: 7 November 2016 b. Date Received: 16 November 2016 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from under other than honorable conditions to honorable. The applicant through counsel seeks relief contending, in effect, substantial evidence shows that the applicant was an exceptional Solider and leader within the U.S. Army, who spent years serving the country and was awarded tremendous praise during and after tenure. The applicant would have continued to rise in the ranks of leadership and make a significant impact but the career and contributions were tarnished by a few mistakes in the applicant's personal life. The government failed to prove that the applicant's adultery prejudiced the good order and discipline of the Army or were of a nature to bring discredit upon the Army. The applicant's personal indiscretion were not of such an open and notorious nature that discredit was brought to the Army. By not providing a preponderance of the evidence that the applicant's alleged misconduct prejudiced the good order and discipline of the Army or brought discredit to the Army's image, the government failed to meet the burden of proof and the Board of Inquiry erred in separating the applicant with an other than honorable discharge. The applicant had 16 years of exemplary performance and service to the United States should not be defined by the few, personal errors in judgment. The applicant continually works towards self-improvement and volunteers in the community. There is a precedent of honoring truly exemplary service by upgrading the characterization of discharges due to adultery. The ADRB granted relief in a previous case citing that the applicant's adultery was mitigated by 14 years of meritorious service and was worthy of an upgrade to honorable. A prior records review was conducted at Arlington, VA on 30 September 2016. In a personal appearance hearing conducted at Arlington, VA on 20 May 2019, 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 608-8-24, Paragraphs 4-2b / JNC / NA / Under Other Than Honorable Conditions b. Date of Discharge: 13 June 2014 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 27 September 2013 (2) Basis for Separation: The applicant was required to show cause for retention on active duty under the provisions of AR 600-8-24, paragraphs 4-2b(5), 4-2b(8), 4-3c(1) and 4-3c(5) for substandard performance and paragraph-4-2b because of misconduct, moral or professional misconduct and / or moral or professional dereliction. He was notified of the following reasons for elimination; he wrongfully had sexual intercourse with Mrs. X., a married woman not his wife, on divers' occasions between (1 December 2012 and 25 March 2013); he wrongfully carried on an intimate relationship with SPC X., on divers' occasions in violation of AR 600-20, paragraph 4-14(c)(2) between (26 March 2013 and 27 June 2013); he received a General Officer Article 15 on 27 August 2013 for the above stated misconduct and moral or professional dereliction, which was subsequently filed in his Army Military Human Resource Record (AMHRR); he wrongfully carried on a sexual relationship with SPC X, a woman not his wife, while on his first tour of duty in Iraq in 2003; and he wrongfully carried on a sexual relationship with SSG X., a woman not his wife, while on his second tour of duty in Iraq in 2005. (3) Recommended Characterization: On 8 January 2014, the record of evidence shows the applicant intended to submit written matters within seven days calendar days for consideration; he ultimately elected not to do so. The applicant's chain of command recommended an under other than honorable conditions discharge. On 17 January 2014, DA. The Commanding General; Headquarters, National Training Center and Fort Irwin, Fort Irwin, CA, recommended the applicant's discharge from the Army with a characterization of service of under other than honorable conditions. (4) Legal Consultation Date: 31 October 2013 (5) Administrative Separation Board/BOI: On 26 November 2013, the BOI convened; and the applicant appeared with counsel. The board recommended that the applicant be separated from the US Army with an under other than honorable characterization of service. On 17 January 2014, the Commanding General; Headquarters, National Training Center and Fort Irwin, recommended approval of the Board of lnquiry's recommendation that the applicant be eliminated from the Army with a characterization of service of under other than honorable conditions. (6) Separation Decision Date / Characterization: On 23 May 2014, An Ad Hoc Review Board recommended that the applicant be involuntarily eliminated from the US Army with an Under Other Than Honorable Conditions characterization of service. The Deputy Assistant Secretary of the Army ( Army Review Boards) approved the Boards' recommendations to involuntarily eliminate the applicant from the US Army based on both misconduct and moral or professional dereliction (Army Regulation 600-8-24, paragraph 4-2b), and derogatory information (Army Regulation 600-8-24, paragraph 4-2c), with an Under Other Than Honorable Conditions characterization of service. 4. SERVICE DETAILS: a. Date / Period of Appointment: 30 May 1998 / Indefinite b. Age at Enlistment / Education / GT Score: 24 years / BS Degree / NA c. Highest Grade Achieved / MOS / Total Service: O-4 / 11A, Infantry / 16 years, 14 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Alaska x2 / SWA / Iraq x2, 16 March 2003 to 1 April 2004 and 2 February 2005 to 6 November 2006 / Afghanistan, 30 July 2009 to 8 March 2010 f. Awards and Decorations: BSM-3, MSM-3, ARCOM-3, AAM, NDSM, ACM-CS, ICM- CS, GWOTEM, GWOTSM, ASR, OSR-5, NATO MDL, CIB, EIB, VUA, RNGR TAB g. Performance Ratings: 20 October 2006 to 15 April 2013, Best Qualified 16 April 2013 to 13 June 2014, Highly Qualified h. Disciplinary Action(s) / Evidentiary Record: GO Article 15, dated 27 August 2013, for failing to obey a lawful general regulation, by carrying on an intimate relationship with SPC X, between (26 March 2013 and 27 June 2013) and for wrongfully having sexual intercourse with Mrs. X., a married woman not his wife between (1 December 2012 and 25 March 2013); forfeiture of $3,604 pay for two months, restriction for 45 days and a written reprimand. Military Police Report, dated 3 February 2014, shows that the applicant was under investigation for driving under the influence-DUI or DWI, with .08 BAC or greater on post. An administrative General Officer Memorandum of Reprimand (GOMOR), dated 21 February 2014, for driving under the influence of alcohol. An administrative General Officer Memorandum of Reprimand (GOMOR), undated, for engaging in an inappropriate relationship with Mrs. X, a female not his wife, by having sexual intercourse with her, despite knowing her marital status from December 2012 until 25 March 2013. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 28 February 2014, relates the applicant had an Axis I diagnosis of phase of life circumstance and alcohol dependence. He was screened for PTSD and mTBI. His screen was negative for PTSD and positive for mTBI. He met criteria for alcohol dependence and was enrolled in ASAP. There was no psychiatric disease or defect that warrants disposition through medical channels in accordance with AR 40-501, Standards of Medical Fitness. There was no psychiatric symptoms sufficient to require hospitalization, necessitate limitations of duty, or interfere with effective military service. He had the mental capacity to understand and participate in board or other administrative proceedings. He was psychiatrically cleared for chapter separation. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); a legal brief (15 pages); dated 2 July 2015, with all listed in enclosures, Exhibits 1 through 30. 6. POST SERVICE ACCOMPLISHMENTS: None submitted 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, or under other than honorable conditions characterization of service may be granted. 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 the characterization of service from under other than honorable conditions 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 Army officers. It brought discredit on the Army and was prejudicial to good order and discipline. The applicant's unacceptable conduct diminished the quality of his service below meriting a general or an honorable discharge at the time of separation. 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 on active duty. The applicant through counsel seeks relief contending, substantial evidence shows that the applicant was an exceptional Solider and leader within the U.S. Army, who spent years serving his country and was awarded tremendous praise during and after his tenure; and he served more than had 16 years of exemplary performance and service to the United States should not be defined by the few, personal errors in judgment. 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 further contends, he would have continued to rise in the ranks of leadership and make a significant impact but his career and contributions were tarnished by a few mistakes in his personal life. The rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature. The applicant also contends, the government failed to prove that the applicant's adultery prejudiced the good order and discipline of the Army or were of a nature to bring discredit upon the Army; and his personal indiscretion were not of such an open and notorious nature that discredit was brought to the Army. The service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. The applicant additionally contends, by not providing a preponderance of the evidence that the applicant's alleged misconduct prejudiced the good order and discipline of the Army or brought discredit to the Army's image, the government failed to meet the burden of proof and the Board of Inquiry erred in separating the applicant with an other than honorable 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 this contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he Board of Inquiry erred in recommending the applicant's separation with an under other than honorable discharge. Furthermore, the applicant contends, he continually works towards self-improvement and volunteers in his community. The applicant is to be commended for his efforts. However, this contention is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued. Lastly, the applicant contends, there is a precedent of honoring truly exemplary service by upgrading the characterization of discharges due to adultery; and the ADRB granted relief in a previous case citing that the applicant's adultery was mitigated by 14 years of meritorious service and was worthy of an upgrade to honorable. However, the method in which another Soldier's case was handled is not relevant to the applicant's case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. 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): Application for Thomas Laybourn - 110 Pages Steam Initiatives - 16 Pages Training Certificates - 2 Pages b. The applicant presented the following additional contention(s): None c. Witness(es) / Observer(s): None 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 20 May 2019, 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 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 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 AR20170007621 6