1. Applicant's Name: a. Application Date: 31 July 2018 b. Date Received: 13 August 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests a change to the narrative reason for separation. The applicant seeks relief contending, in effect, the nature of the misconduct was six years prior to the events being disclosed by an ex-spouse, prior to serving six years commendable commission time; while enlisted and a day before final divorce court date was to commence. Also, the possibility of a violation of the statute of limitation under UCMJ pertaining to the date of last incident being over five years. In a records review conducted at Arlington, VA on 9 August 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 and 4-24a (1) / BNC / NA / Honorable b. Date of Discharge: 19 January 2017 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 19 August 2016 (2) Basis for Separation: applicant was required to show cause for retention on active duty under the provisions of AR 600-8-24, paragraph 4-2b(5), due to his misconduct and moral dereliction; and adverse information filed in the Army Military Human Resource Record (AMHRR) in accordance with AR 600-37. He was notified of the following reasons; he wrongfully engaged in a sexual relationship with a woman not his wife in or around November 2009 and fathered a child with her. After the birth of his son, he refused to provide support for him and ceased communications with the mother. This decision forced her to seek remedy from the courts several times in order to compel him (applicant) to provide child support. This conduct continued for several years following his commissioning, during which time he also hid the fact he fathered an illegitimate child from his wife and the Army. This deception only ended when the courts finally compelled him to support his child. He received a General Officer Memorandum of Reprimand (GOMOR) for this conduct (19 April 2016). (3) Recommended Characterization: On 19 October 2016, The Commanding General; Headquarters, III Corps and Fort Hood, Fort Hood, Texas, recommended the applicant be eliminated from the Army with an Honorable characterization of service. (4) Legal Consultation Date: 8 September 2016 On 8 September 2016, the applicant voluntarily tendered his resignation from the Army under the provisions of AR 600-8-24, Chapter 4, in lieu of further elimination proceedings. (5) Administrative Separation Board / BOI: None (6) Separation Decision Date / Characterization: The Army Ad Hoc Review Board reviewed the resignation in lieu of elimination tendered by the applicant. On 3 January 2017, the Deputy Assistant Secretary (Army Review Boards) accept the applicant's resignation and he will be discharged from the United States Army with an Honorable characterization of service. This elimination is 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). 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 July 2010 / NIF b. Age at Enlistment / Education / GT Score: 28 years / BS Degree / NA c. Highest Grade Achieved / MOS / Total Service: 0-3 / 74A, Chemical / 8 years, 11 months d. Prior Service / Characterizations: RA, 20 February 2008 to 30 June 2010 / HD RA, Appointment 2LT, 1 July 2010 e. Overseas Service / Combat Service: None f. Awards and Decorations: ARCOM, AAM-2, NDSM, GWOTSM, ASR g. Performance Ratings: 25 January 2014 to 19 January 2017, Highly Qualified h. Disciplinary Action(s) / Evidentiary Record: An administrative General Officer Memorandum (GOMOR), dated 19 April 2016, for wrongfully engaging in a sexual relationship with a woman not his wife in or around November 2009 and fathering a child with her. After the birth of his son, he refused to provide support for him and ceased communications with the mother which forced her to go to court several times in order to compel him to provide child support. This conduct was prejudicial to good order and discipline and brought discredit upon the Armed Forces. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 12 October 2016, relates the applicant had an Axis I diagnosis of occupational problem. He had no observed behavioral abnormalities, no evidence of thought disorder or psychotic symptoms. He was mentally responsible, able to distinguish right from wrong and had the mental capacity to understand and participate in administrative/board proceedings. He met retention standards prescribed in AR 40-501 and there was no psychiatric disease or defect that warrants disposition through medical channels. He was psychiatrically cleared for officer elimination under AR 600-8-29; Chapter 4. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 (two pages); and a support statement (applicant's former spouse). 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. 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 "BNC" as the appropriate code to assign officer Soldiers 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 requests a change to the narrative reason for separation. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The applicant requested a change to the narrative reason for separation. 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 "BNC" as the appropriate code to assign officer Soldiers, who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4-2b, unacceptable conduct. The regulation further stipulates no deviation is authorized. The applicant seeks relief contending, the nature of the misconduct was six years prior to the events being disclosed by ex-spouse, prior to serving six years commendable commission time; while enlisted and a day before final divorce court date was to commence; also, the possibility of a violation of the statute of limitation under UCMJ pertaining to the date of last incident being over five years. 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 these contentions. There is no evidence in the record, nor has the applicant produced any evidence to support these contentions that his resignation in lieu of elimination was unjust. 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 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 August 2019, 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 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 AR20180016142 1