1. Applicant's Name: a. Application Date: 4 June 2019 b. Date Received: 10 June 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable and to change the narrative reason for his discharge. The applicant seeks relief contending, in pertinent part and in effect, his request is pursuant to the 25 August 2017 memorandum on providing relief for veterans suffering from PTSD. He was diagnosed with PTSD in 2007, while serving as an Army Judge Advocate at Fort Leonard. He received an evaluation of 70 percent for PTSD by the Department of Veterans Affairs. Documentary evidence shows the medication and the PTSD treatment he was receiving were the major contributing causes for the misconduct that led to his current discharge. Previous performance evaluations would show that the conduct was not indicative of the way he served his country during operations in Libya in April 1986; Operation Desert Shield aboard USS Dwight D. Eisenhower (CVN-69) in 1990; and Operation Enduring Freedom in 2005. Those evaluations were throughout his military service, while participating in real world conflicts. The evaluations prove for over twenty-two years, he consistently received high evaluations and recommendations for promotions. He contends that the PTSD and medication he was prescribed, inherently affected his behavior and decision-making. The Psychiatrist at Fort Leonard Wood who treated him, stated in the Medical Evaluation Board Report, dated 20 August 2008, his PTSD appeared to have developed in earlier deployments, and that during an Eye Movement Desensitization Reprocessing (EMDR) session and after being prescribed Xanax by a primary care doctor, he became suicidal and was admitted to ward 4C for safety purposes. Despite having been diagnosed with PTSD, being suicidal, and being committed to a psychiatric unit, he was found fit for duty and discharged. An upgrade and a change to the narrative reason for his separation to "Condition not a disability" are reasonable, due to the circumstances. 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 Anxiety Disorder NOS and Major Depressive Disorder, PTSD. Post-service, the applicant is service connected for PTSD with additional diagnoses of MDD and Personality Disorder. In summary, the applicant does not have a BH diagnosis that is mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 6 November 2020, 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 600-8-24, Paragraphs 4-2b / JNC / NA / General (Under Honorable Conditions) b. Date of Discharge: 17 December 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 12 February 2008 (2) Bases for Being Required to Show Cause for Retention on Active Duty: The applicant received an Article 15 on 5 February 2008. The punishment consisted of a reprimand and to forfeit one-half month's pay per month for two months (one-month of the forfeiture was suspended). The specific factual allegations and evidence used for the Article 15 were the bases for the initiation of the applicant's elimination: The applicant knowing of his duties on 28 September 2007, was derelict in the performance of those duties; in that, he willfully had sex with Ms. R.B., who was at the time his legal assistance client. On 30 October 2007, at or near Fort Leonard Wood, Missouri, with intent to deceive, the applicant made an official statement to LTC S.J.L., to wit: "I did not have sex with [Ms. B.], nor did I have any other inappropriate relationship with her. I did meet her briefly on the evening of the 28th in the parking lot of a gas station near the hotel I was staying at with my wife and friends," or words to that effect, which statement was false in that the applicant did have sex with Ms. B, had an inappropriate relationship with Ms. B, shared a hotel room with Ms. B. on 28 September 2007, and that he was not sharing a room with his wife and friends that evening. The applicant, a married man, did, on 28 September 2007, wrongfully have sexual intercourse with Ms. R.B., a married woman not his wife. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 10 March 2008 and 18 March 2008 (5) Board of Inquiry Date/Recommendation: 23 June 2008, discharge from the service based on misconduct and moral or professional dereliction, and conduct unbecoming of an officer, with General (Under Honorable Conditions) characterization of service (6) DA Ad Hoc Review Board Recommendation: General (Under Honorable Conditions) (7) Separation Decision Date / Characterization: 21 November 2008 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Active Service: 22 October 2006 / 174 days pursuant to JAG OBC Orders A-09-624952, dated 28 September 2006, and subsequent active duty on 11 May 2007, for 3 years to fulfill Active Army requirement b. Age at Active Duty Service / Education / GT Score: 40 / J.D. Degree / NA c. Highest Grade Achieved / MOS / Total Service: O-3 / 27A, Judge Advocate, General / 23 years, 5 months, 28 days d. Prior Service / Characterizations: NDEP (29 February 1984 to 22 July 1984) / NA DD Form 214 USN (23 July 1984 to 22 April 1988) / HD USNR (23 April 1988 to 20 September 1988) / NA DD Form 214 USN (21 September 1988 to 20 September 1990) / HD USNR (21 September 1990 to 14 April 1991) / NA Enlisted ARNG (15 April 1991 to 1 September 1993) / GD IRR (2 September 1993 to 27 February 1995) / NA USAR (28 February 1995 to 30 September 1996) / NA ARNG (1 October 1996 to 9 March 1997) / HD USAR (10 March 1997 to 19 March 1998) / HD USAR IRR (20 March 1998 to 27 May 2003) / NA ARNG (28 May 2003 to 4 December 2004) / HD APPT ARNG (5 December 2004 to 16 December 2005) / NA DD Form 214 OEF MOB (17 December 2005 to 31 May 2006) / HD ARNG (1 June 2006 to 21 October 2006) / HD e. Overseas Service / Combat Service: SWA / Kuwait (NIF), Afghanistan (2 January 2006 to 12 May 2006) f. Awards and Decorations: ARCOM; NDSM; ACM; SWASM; GWOTSM; NCOPDR; ASR; AFRM-M DEV; NSSDR; USN/USMC EXP; KLM(SA); KLM(K); JMUA; NUC; NMUC g. Performance Ratings: Five OERS: 5 December 2004 thru 31 May 2005, Satisfactory Performance, Promote 1 June 2005 thru 17 December 2005, Outstanding Performance, Must Promote 18 December 2005 thru 6 June 2006, Outstanding Performance, Must Promote 7 June 2006 thru 16 September 2006, Outstanding Performance, Must Promote 1 February 2007 thru 29 September 2007, Outstanding Performance, Must Promote h. Disciplinary Action(s) / Evidentiary Record: GO Article 15 with its associated documents, dated 5 February 2008, for being derelict in the performance of his duties on 28 September 2007, when he willfully had sex with Ms. R.B., who was at that time his legal assistance client; making a false official statement to LTC S.J.L. on 30 October 2007; and wrongfully having sexual intercourse with Ms. R.B., a married woman not his wife on 28 September 2007. The punishment consisted of forfeiture of $2,857 pay per month for two months (the second month was suspended), and a written reprimand. General Officer Memorandum of Reprimand and its associated documents, dated 2 May 2008, indicates the applicant was reprimanded for violating Army Rules of Professional Conduct for Lawyers Rule 8.4 (Misconduct) and Rule 1.7 (Conflict of Interest), MCM, for engaging in a sexual relationship with a legal assistance client and then lying to the inquiry officer who investigated his misconduct. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Applicant's "Exhibit F" documentary evidence: Medical Evaluation Board diagnoses, dated 20 August 2008, details the extent of "Axis I" diagnosis as "Posttraumatic stress disorder, chronic, as manifested by multiple traumatic experiences where horror and helpless ness were the responses," and that they "were combat-related experiences." 5. APPLICANT-PROVIDED EVIDENCE: DD Forms 293 and 149 (Applications for the Review of Discharge, and listed attachments identified as Exhibits, from Exhibit A to Exhibit F. 6. POST SERVICE ACCOMPLISHMENTS: None provided with the application. 7. REGULATORY CITATION(S): Army Regulation (AR) 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. Paragraph 1-22a, provides that 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. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. A general (under honorable conditions) characterization of service will normally be issued to an officer when the officer's military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A separation general (under honorable conditions) will normally be appropriate when an officer submits an unqualified resignation or a request for relief from active duty under circumstances involving misconduct which renders the officer unsuitable for further service, unless an under other than honorable conditions separation is appropriate. A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. An officer will normally receive an under other than honorable conditions when they resign for the good of the service, are dropped from the rolls of the Army, are involuntarily separated due to misconduct, moral or professional dereliction, or for the final revocation of a security clearance as a result of an act or acts of misconduct. 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 "JNC" as the appropriate code to assign Soldiers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4, paragraph 4-2b, unacceptable conduct, pursuant to resignation or voluntary discharge in lieu of elimination proceedings. 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 general (under 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 the applicant's discharge, based on unacceptable conduct, 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 provided no corroborating evidence demonstrating that the command's action was erroneous or sufficient evidence showing his service mitigated the unacceptable conduct or poor duty performance, such that he should have been retained on Active Duty. The applicant's contentions regarding his behavioral health issues resulting from being diagnosed with PTSD were carefully considered. A careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues along with notable service-connected post-traumatic stress disorder symptoms existed, and the applicant contends they were contributing factors that led to his misconduct. 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. Insofar as his request to change the reason for his separation, 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 4, paragraph 4-12b is "Unacceptable Conduct," and the separation code is JNC. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, the Board can find that his complete period of service was or was not sufficiently mitigating to warrant an upgrade of his characterization of service and to change the narrative reason for his discharge. 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. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 6 November 2020, 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 / 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 AR20190008816 1