1. Applicant's Name: a. Application Date: 24 April 2019 b. Date Received: 29 April 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of general (under honorable conditions) discharge to honorable and a narrative reason change. The applicant also requests that the Combat Action Badge be added on a DD Form 215. The applicant seeks relief contending, in effect, there is a procedural defect in the applicant's case. The request for administrative separation can be both command-initiated and initiated by the service-member. In the applicant's case, there was a hasty command-initiated request for separation. The applicant was experiencing difficulties mentally and emotionally, but the command did not find out if there was any way that they could have helped. Counsel states, it is likely that the applicant was suffering from undiagnosed PTSD and it was a factor on the day the applicant committed adultery. The applicant has been diagnosed with service-connected PTSD and this was not considered by the command when factoring in the characterization for discharge. The applicant was diagnosed with PTSD stemming from childhood as well. Counsel states, although the command was authorized to administratively separate applicant, the fundamental reason for the discharge was substantially deficient. There was no fully determined reason to initiate elimination. The Army Regulation also allows for the service- member to be able to "fix" the problem. The applicant was not allowed these opportunities. The applicant was never offered or provided with rehabilitation. The command in this case did not have the proper authority to administratively separate applicant. Counsel states, the general (under honorable conditions) discharge does not serve a further purpose. The events that took place are no longer relevant to applicant's life and the applicant has lived since in as responsible a manner as possible. There is no valid equitable purpose in leaving the discharge in place. Further, the entirety of the applicant's military career is reflected in the personnel records, medical records, and personal affidavit. Reviewing the military record, the Board will see the applicant gave as much as possible to the Army. Since discharge, the applicant has sought to fix life. Due to the characterization of discharge, the applicant is unable to utilize a Bachelor's Degree in Law Enforcement to hold a job as law enforcement in the State of Tennessee or work for federal, state, or local government. A strictly honorable discharge characterization is required. The applicant has suffered severe gaps of unemployment since discharge from the Army. The applicant would like to work civil service to continue working towards government pension and possibly also attend law school. The applicant has been employed as a Legal Assistant at a Law Firm in Tennessee since October 2018 and is now a Notary Public. The discharge is a dark cloud over the applicant's life and no longer serves a purpose. Counsel further details contentions in an allied legal brief, which includes a self-authored statement from the applicant, wherein the applicant details the contentions as well. The evidence of record reflects the applicant had a prior records review conducted at Arlington, VA on 7 September 2018. 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 Other Specified Trauma or Stress Related Disorder. The applicant is 50% service-connected for PTSD from the VA. In summary, the applicant's BH diagnosis is not mitigating for the misconduct which led to separation from the Army. In a personal appearance hearing conducted at Arlington, VA on 26 August 2019, and by a 4-1 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD and MST), a prior period of honorable service, and post-service accomplishments. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF, and a change to the reentry eligibility (RE) code to 1. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Unacceptable Conduct / AR 600-8-24, Chapter 4-2b and 4-24a (1) / BNC / NA / General (Under Honorable Conditions) b. Date of Discharge: 12 December 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 8 April 2015 (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(4), 4-2b(5), 4-2b(8), and 4-2c(1), for the intentional omission or misstatement of facts in an official statement for the purpose of misrepresentation, misconduct, moral or professional dereliction, conduct unbecoming an officer, and for receiving punishment under Article 15, UCMJ. This action was based upon the following specific reasons for elimination: Between 1 February 2013 and 13 April 2013, she wrongfully and dishonorably engaged in a prohibited and adulterous relationship with a subordinate noncommissioned officer (NCO) and on 17 April 2013, she provided a false official statement to an investigating officer concerning her relationship with the NCO; and, On 17 May 2013, she received punishment under Article 15, UCMJ for those offenses. (3) Legal Consultation Date: On 23 March 2016, the applicant submitted a request for resignation in lieu of elimination (RILOE) conditioned on receiving a characterization no less favorable than general (under honorable conditions). (4) GCMCA Recommendation Date: 29 March 2016 / General (Under Honorable Conditions) (5) DA Ad Hoc Review Board: The Department of the Army Ad Hoc Review Board accepted the applicant's request for resignation in lieu of elimination in accordance with AR 600- 8-24, Chapter 4 with a General (Under Honorable Conditions) characterization of service. (6) Separation Decision Date/ Characterization: 21 November 2016 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Appointment: 9 September 2015 / Indefinite b. Age at Enlistment / Education: 22 / Bachelor's Degree c. Highest Grade Achieved / MOS / Total Service: O-2 / 4285Q5P, HR Officer / 8 years, 1 day d. Prior Service / Characterizations: ARNG, 12 December 2008 to 4 May 2009 / NA ADT, 5 May 2009 to 11 September 2009 / HD ARNG, 12 September 2009 to 9 August 2012 / HD Appointed 2L T / USAR (10 August 2009 to 6 September 2012) / NA RA, 7 September 2012 to 8 September 2015 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (1 July 2013 to 27 March 2014) f. Awards and Decorations: ARCOM, AAM, MUC, ACM-CS, NDSM, GWOTSM, ASR, OSR, NATOMDL g. Performance Ratings: 7 September 2012 to 7 December 2013 / Best Qualified 8 December 2013 to 7 December 2014 / Highly Qualified 7 December 2014 to 6 December 2015 / Not Qualified 8 December 2015 to 22 April 2016 / Qualified h. Disciplinary Action(s) / Evidentiary Record: AR 15-6 Investigation, dated 30 April 2013, reflects the investigating officer found that the applicant and SSG C.R.B., violated Article 134, UCMJ, adultery, by engaging in a sexual relationship while married. GO Article 15, dated 13 May 2013, for between 1 February 2013 and 1 April 2013, she violated a lawful general regulation, to wit: paragraph 4-14, Army Regulation 600-20, dated 18 March 2008, by engaging in a relationship with SSG C.R.B., that created a clearly predicable adverse impact on discipline, authority, and morale; she wrongfully and dishonorably engaged in unlawful conduct with SSG C.R.B., an enlisted Soldier, by engaging in an intimate relationship, which conduct was to the disgrace of the armed forces and unbecoming of an officer and a gentlewoman; and on 17 April 2013, she wrongfully and dishonorably made a false official statement to an investigating officer when she denied her intimate relationship with SSG C.R.B., which conduct was to the disgrace of the armed forces and unbecoming of an officer and a gentlewoman. The punishment consisted of forfeiture of $1,809 pay per month for two months, arrest in quarters for 30 days (suspended) for 180 days, and written reprimand. On 8 April 2015, MG G.J.V., determined that the punishment of forfeiture of $1,809 pay per month for two months was improperly imposed, set aside the forfeiture, and directed that the Defense Finance and Accounting Service repay the applicant in the amount of $3,618. The applicant was found guilty of all specifications for wrongfully engaging in a prohibited intimate relationship with a subordinate enlisted Soldier and providing false information to the investigating officer. AR 15-6 Investigation, dated 6 May 2015, reflects the investigating officer found by a preponderance of the evidence that the applicant and Chief Warrant Officer 3 RC., violated Article 133, UCMJ, conduct unbecoming, by having an inappropriate relationship while married; Article 134, UCMJ, adultery, by engaging in a sexual relationship while married. GO Article 15, dated 18 June 2015, for between 1 September 2014 and on or about 28 April 2015, wrongfully and dishonorably engaged in an inappropriate sexual relationship with Chief Warrant Officer 3 RC., a married man not her husband, which conduct was to the disgrace of the armed forces and unbecoming of an officer and a gentlewoman and between on or about 1 September 2014 and 28 April 2015, she wrongfully had sexual intercourse with Chief Warrant Officer 3 RC., a married man not her husband, such conduct being to the prejudice of the good order and discipline of the armed forces. The punishment consisted of forfeiture of $2,339 pay per month for two months (suspended). Report of Mental Status Evaluation, dated 10 June 2015, shows that the applicant was screened for PTSD and mTBI IAW OTSG/MEDCOM policy Memo 10-040. Results were negative. The applicant declined services at that time. The applicant was psychiatrically cleared for action to separate under AR 600-8-24 consideration per her command. The applicant denied thoughts of hurting herself or others. The applicant met medical retention per AR 40-501 and was therefore cleared for chapter action. The applicant agreed to non- confidential evaluation for purposes of chapter clearance and consented to release of report to command. Counseling statement for act of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided copies of her Progress Notes, dated between December 2015 and May 2016, which reflects the applicant was diagnosed with PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 with allied legal brief; applicant self- authored statement; military records; letters of recommendation; All previous submissions related to previous ADRB Docket 20170009810; Progress Notes. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, she has been employed as a Legal Assistant at a Law Firm and is now a Notary Public. 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 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. 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 her general (under honorable conditions) discharge to honorable and a narrative reason change. The applicant also requests that her Combat Action Badge be added on a DD Form 215. The applicant's record of service, the issues and documents submitted with her application were carefully reviewed. The record confirms that the applicant's discharge was appropriate because the quality of her 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 her service mitigated the unacceptable conduct or poor duty performance, such that she should have been retained. Further, the applicant's record contains no evidence of arbitrary or capricious actions by the command. The applicant contends the Combat Action Badge should be added to her discharge. However, the applicant's requested change to the DD Form 214 does not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. 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 and 4-24a (1), AR 600-8-24 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Unacceptable Conduct," and the separation code is "BNC." 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 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 applicant contends she was contends she was suffering from undiagnosed PTSD, which affected her behavior. The applicant provided independent documents, which reflect she was diagnosed with PTSD; however, the documents do not support a conclusion that these conditions rendered the applicant unfit for further service at the time of her discharge processing. The available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during her discharge processing that would have warranted her separation processing through medical channels. Further, the record reflects that on 10 June 2015, the applicant underwent a mental status evaluation which indicates she was mentally responsible, with thought content as clear, and was able to recognize right from wrong. It appears the applicant's chain of command determined that he knew the difference between what was right and wrong as indicated by the mental status evaluation. The applicant contends there was no fully determined reason to initiate her elimination. 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 her overall service record. The applicant contends she was not given the opportunity to "fix" or rehabilitate herself. However, the evidence of record shows the command attempted to assist the applicant in performing and conducting herself to Army standards by providing counseling and by the imposition of non-judicial punishment. The applicant failed to respond appropriately to these efforts. The applicant contends that she had good service which included a combat tour. The applicant's service accomplishments and the quality of her service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for her accomplishments. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The applicant contends that an upgrade of her discharge will allow her to obtain better employment. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. The third party statements provided with the application speak highly of the applicant's performance. However, 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. (Insert the following for PA Board Cases) 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): Character Statements - 2 Pages 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. Witness(es) / Observer(s): 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 26 August 2019, and by a 4-1 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD and MST), a prior period of honorable service, and post-service accomplishments. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF, and a change to the reentry eligibility (RE) code to 1. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Secretarial Authority d. Change Authority to: AR 635-200, paragraph 5-3 e. Change SPD / RE Code to: JFF / RE-1 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 AR20190005729 7