1. Applicant's Name: a. Application Date: 12 April 2019 b. Date Received: 15 April 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to general (under honorable conditions). The applicant seeks relief contending, in effect, whether the issuance of the discharge received was unduly severe based on his distinguished service record. In a telephonic personal appearance hearing conducted on 21 June 2021, and by a 3-2 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (OBHI diagnoses), combat wounded, valor, and post-service accomplishments, and clemency was warranted. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. Please see Section 10 of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Unacceptable Conduct / AR 608-8-24, Paragraph 4-2b and 4-24a(1) / BNC / NA / Under Other Than Honorable Conditions b. Date of Discharge: 18 January 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 22 March 2016 (2) Basis for Separation: The applicant required to show cause for retention on active duty under the provisions of AR 600-8-24, paragraphs 4-2b(5) for acts of personal misconduct and 4-2b(8), for conduct unbecoming an officer. He was notified of the following reasons: Acts of personal misconduct documented in an AR 15-6 investigation; and conduct unbecoming an officer as indicated by the above-referenced AR 15-6 investigation. (3) Recommended Characterization: On 1 April 2016, the Commanding General; Headquarters, Eighth Army, APO AP 96205-5236, recommended that the applicant be allowed to resign in lieu of elimination; if separated from the Army he further recommended a characterization of service of general (under honorable conditions). (4) Legal Consultation Date: 24 March 2016 On 24 March 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: Applicant elected to waive his right to appear before a board of officers (BOI). On 8 December 2016, The Department of the Army Ad Hoc Review Board reviewed the Resignation in Lieu of Elimination tendered by the applicant. The Deputy Assistant Secretary of the Army (Review Boards) accepted his resignation and he was discharged from the US Army with an under other than honorable conditions characterization if service. The elimination was based on misconduct and moral or professional dereliction (Army Regulation 600-8-24, paragraph 4-2b). (6) Separation Decision Date / Characterization: 8 December 2016 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Appointment: 1 April 2002 / Voluntary Indefinite b. Age at Appointment / Education: 27 years / BS Degree c. Highest Grade Achieved / MOS / Total Service: O-5 / 25A, Signal / 20 years, 4 months, 20 days d. Prior Service / Characterizations: USAR (Cadet), 27 August 1996 to 14 May 1999 / NA USAR, 15 May 1999 to 18 May 1999 / NA RA, 19 May 1999 to 31 March 2002 / NA e. Overseas Service / Combat Service: Korea, SWA / Iraq (1 March 2003 to 20 January 2004, 18 November 2005 to 19 November 2006, 4 September 2007 to 5 October 2007 and 10 January 2008 to 11 April 2008); Afghanistan (11 August 2008 to 20 November 2008); Djibouti, (27 November 2008 to 27 November 2008) Qatar 25 August 2009 to 25 September 2010) f. Awards and Decorations: BSM-2, PH, DMSM, MSM-2, ARCOM-V DEV-2, ARCOM-2, AAM-6, NDSM, ICM-3CS, ACM-CS, GWOTEM, GWOTSM, KDSM, ASR, OSR-3, CAB, JMUA, VUA, MUC g. Performance Ratings: 24 May 2002 to 31 December 2013 / Best Qualified 1 January 2014 to 1 May 2015 / Most Qualified 2 May 2015 to 29 January 2016 / Not Qualified h. Disciplinary Action(s) / Evidentiary Record: The applicant received a negative counseling statement, dated 7 January 2016, for engaging in a prohibited relationship with a subordinate officer. DD Form 458, Charge Sheet, dated 18 February 2016, shows the same charges in the GO Article 15. Pre-trial offer and agreement, the applicant agreed to plead guilty to all charges and specifications as alleged in charges preferred against him on 18 February 2016 at a General Officer Article 15 proceeding. As an express condition of this offer and agreement, he agreed when he is served with the initial notification of the separation, he would tender his unconditional resignation in lieu of elimination no later than 48 hours after receipt. GO Article 15, dated 1 April 2016, for failing to obey a lawful general regulation, by wrongfully engaging in a dating and sexual relationship with 2LT M.C., a subordinate officer under his command on divers occasions between (5 June 2015 and 22 December 2015); fail to obey a lawful general regulation, by repeatedly visiting bars and private residences with subordinate lieutenants and repeatedly consuming alcohol with subordinate lieutenants between (5 June 2015 and 18 December 2015); being a married man, did wrongfully have sexual intercourse with 2LT M.C., a woman not his wife, such conduct being prejudice of good order and discipline in the armed forces, on divers occasions, between (1 October 2015 and 20 December 2015); having received a lawful command on 22 December 2015 from COL .A.P.R., his superior commissioned officer, to "initiate no contact or communication with 2LT M.C.," or words to that effect, did willfully disobey the same by sending 2LT M.C., text messages and electronic mail and leaving her letters and gifts at between (23 December 2015 and 7 January 2016), having received a lawful command on 22 December 2015 from COL A.P.R., his superior commissioned officer, to remain at least 50 feet away from 2LT M.C. and her residence, or words to that effect, did willfully disobey the same (5 January 2016); did unlawfully grab 2LT M.C's scarf and push her with his hands against an elevator wall (11 December 2015); and with intent to deceive, make to COL J.M.S., official statements, "I never entered 2LT M.C.'s room," "I don't know her room number," and "I don't have her access code," or words to that effect, which statements were false in that you had entered 2LT M.C.'s room, you did know her room number, and he did have her access code, and was then known by him to be so false (23 December 2015); and, forfeiture of $4,079 for two months and restriction for 60 Days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 27 April 2016, relates the applicant had an Axis I diagnosis of adjustment disorder with depressed mood. He was screened for PTSD and TBI. These conditions were either not present or, if present, do not meet AR 40-501 criteria for a medical evaluation board. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); Exhibit 1, DD Form 214 (two pages); Exhibit 2, Officer Record Brief; Exhibit 3, withdrawal and dismissal of charges; Exhibit 4, Charge Sheet (two pages); Exhibit 5, Deputy Assistant Secretary of the Army (DASA), approval of the applicant's resignation; Exhibit 6, applicant's letter (two pages); Exhibit 7, 22 OERs; Exhibit 8, seven support statements; Exhibit 9, seven AAM Certificates, four ARCOM Certificates, recommendation for award / with narrative; two Bronze Star Certificates; CAB Orders 269-02, Defense Meritorious Service Medal Certificate; Memorandum for Record, acceptance and wear of German Parachute Badge (two pages), announcement of award of the Joint Meritorious Unit Award, Joint Meritorious Unit Award Citation, Memorandum for the Commandant, award of the Joint Meritorious unit Award, Master parachutist badge, Meritorious Service Medal Certificate, two Purple Heart Orders 164-05 / with Citation, Purple Heart Citation; personnel action, a Valorous Unit Award Certificate, Letters of Recommnedation-2, and Memorandum, Resignation in Lieu of Elimination (20160104). 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides 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), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides 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, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification 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. (2) 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. c. Army Regulation 15-180 (Army Discharge Review Board), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers. (1) Paragraph 1-23, provides the authorized types of characterization of service or description of separation. (2) Paragraph 1-23a, states an officer will normally receive an honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty, or the final revocation of a security clearance under DODI 5200.02 and AR 380-67 for reasons that do not involve acts of misconduct for an officer. (3) Paragraph 1-23b, states an officer will normally receive a general (under honorable conditions) characterization of service when the officer's military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A separation under general (under honorable conditions) normally appropriate when an officer: Submits an unqualified resignation; Separated based on misconduct; discharged for physical disability resulting from intentional misconduct or neglect; and, for final revocation of a security clearance. (4) Paragraph 1-23c, states a discharge under other than honorable conditions is an administrative separation from the service. A discharge certificate will not be issued. An officer will normally receive an under other than honorable conditions when he or she: Resigns for the good of the Service; is dropped from the rolls (DFR) of the Army in accordance with paragraph 5-9; (3) is involuntarily separated due to misconduct, moral or professional dereliction, or for the final revocation of a security clearance under DODI 5200.02 and AR 380-67 as a result of an act or acts of misconduct, including misconduct for which punishment was imposed; and, is discharged following conviction by civilian authorities. (5) Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty. (6) Paragraph 4-2b, prescribes for the elimination of an officer for misconduct, moral or professional dereliction, or in the interests of national security. (7) Paragraph 4-24a states an officer identified for elimination may, at any time during or prior to the final action in the elimination case elect one of the following options: (1) Submit a resignation in lieu of elimination; (2) request a discharge in lieu of elimination; and, Apply for retirement in lieu of elimination if otherwise eligible. e. 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 commissioned officers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4-2b, unacceptable conduct; and, 4-24a (1), resignation in lieu of elimination. 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to general (under honorable conditions). The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant seeks relief contending, the issuance of the discharge he received was unduly severe based on his distinguished service record. The third party statement provided with the application spoke highly of the applicant's performance. The authors recognized his good performance while in the Army. The record does not contain any indication or evidence of arbitrary or capricious actions by the command. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): N/A b. The applicant presented the following additional contention(s): Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence. c. Counsel / Witness(es) / Observer(s): 10. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (YES) Applicant was diagnosed with adjustment disorder. (2) Did the condition exist or experience occur during military service? (YES) The applicant was diagnosed with adjustment disorder while on active duty. (3) Does the condition or experience actually excuse or mitigate the discharge? (NO) The ADRB concurred with the Board's medical advisor, a voting member, that the adjustment disorder diagnosis occurred as a result of the applicant's misconduct and subsequent disciplinary action. (4) Does the condition or experience outweigh the discharge? (NO) The ADRB decided that the applicant's misconduct occurred before the applicant's diagnosis of adjustment disorder, and in fact that the diagnosis was a result of the misconduct and subsequent disciplinary action. Therefore, the Board decided that the condition does not outweigh the discharge. b. The applicant contends that the characterization of service was unduly severe based on the distinguished service record, when looked at in whole. The panel majority agreed, while the minority focused on the position of trust the applicant held and victim statement. c. The ADRB determined the characterization of service was too harsh based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (OBH diagnosis), combat wounded, valor, and post-service accomplishments, and clemency was warranted. Therefore, the Board voted to grant relief in the form of an upgrade to the characterization of service to General (Under Honorable Conditions). d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to General (Under Honorable Conditions) because the characterization was too harsh and clemency was warranted as detailed above. (2) The Board voted not to change the applicant's reason for discharge because, despite applying liberal consideration, the applicant's diagnosis of adjustment disorder was related to the misconduct and disciplinary action, and did not exist prior to the misconduct. (3) Because the reason was not changed, the SPD/RE code will not change, as the current codes are consistent with the procedural and substantive requirements of the regulation. 2. 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: 7/23/2021 Presiding Officer, COL, U.S. ARMY Army Discharge Review Board Signed by: COLBERT.ROLANDA.DELRESA.1064869872 Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma NA - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Reentry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs