1. Applicant’s Name: a. Application Date: 4 January 2020 b. Date Received: 8 January 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, there was long standing honorable service prior to the misconduct which led to the separation. The applicant had been separated for more than two years and the ex-spouse refused to sign the divorce paperwork based on monetary reasons but signed immediately after the applicant’s discharge. The applicant mistakenly referred to the applicant’s significant other as a spouse and received non-judicial punishment. b. Board Type and Decision: In a records review conducted on 18 November 2022, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 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: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General, Under Honorable Conditions b. Date of Discharge: 19 October 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 25 September 2012 (2) Basis for Separation: The applicant was informed of the following reasons: On diverse occasions between on or about 1 January 2012 and on or about 5 June 2012, the applicant committed adultery with a person not the spouse, the applicant referred to a spouse being pregnant, and the applicant failed to provide adequate financial support for the spouse and child. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 26 September 2012 (5) Administrative Separation Board: The applicant waived consideration of the case by an administrative separation board. (6) Separation Decision Date / Characterization: 4 October 2012 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 December 2011 / 4 years b. Age at Enlistment / Education / GT Score: 17 / Test-Based Equivalent Certificate /112 c. Highest Grade Achieved / MOS / Total Service: E-4 / 15E10, Unmanned Aircraft System / 8 years, 2 months, 17 days d. Prior Service / Characterizations: RA, 3 August 2004 – 30 November 2011 / HD e. Overseas Service / Combat Service: Korea, SWA / Afghanistan (10 March 2010 – 11 March 2011) f. Awards and Decorations: Basic Aviation Badge, ARCOM, AAM-5, AGCM-2, NDSM, ACM-CS-2, GWOTSM, GWOTEM, KDSM, NCOPDR, ASR, OSR-3, NATO Medal, Driver and Mechanic Badge-Mechanic, COA g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Memorandum for Record, 15-6 Investigation of the events surrounding the falsification of official documents and suspected adultery, dated 27 June 2012, reflects that Investigating Officer determined that applicant made three false official statements, one of which to a commissioned officer, all made with the intent to deceive and all known to be false at the time the statement was made; and guilty of adultery. FG Article 15, dated 4 September 2012, reflects the applicant made three false official statements with intent to deceive; wrongfully cohabit with a person of the opposite gender not the spouse; and the applicant wrongfully had sexual intercourse with said person, not the spouse, on diverse occasions between on or about 1 January 2012 and on or about 5 June 2012. The punishment consisted of reduction to private first class/E-3; forfeiture of $999 pay per month for 2 months, suspended, to be automatically remitted if not vacated before 3 March 2013 extra duty for 45 days, and an oral reprimand. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: A Report of Mental Status Evaluation, dated 14 September 2012, reflects the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. The applicant was diagnosed with adjustment disorder with depressed mood and headaches, sleep problems. Developmental Counselling Forms (3) about the applicant family support, child custody and paternity, making false official statements and initial counseling. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Court Order, Letters of Support-2, DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) 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 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (6) Paragraph 14-12c, states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant’s Army Military Human Resource Record (AMHRR), the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable. The applicant contends there was long standing honorable service prior to the misconduct which led to the separation. The Board will consider the applicant service accomplishments and the quality of service according to the DODI 1332.28. The applicant had been separated for more than two years and the ex-spouse refused to sign the divorce paperwork based on monetary reasons but signed immediately after the applicant’s discharge. The applicant mistakenly referred to the applicant’s significant other as a spouse and received non-judicial punishment. 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. 9. 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. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: Adjustment Disorder with possible IPV as a victim, and Mood Disorder indicated by the VA as a progression of the Adjustment Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board’s Medical Advisor found that the applicant’s Adjustment Disorder with possible IPV as a victim existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that an Adjustment Disorder is a low level, temporary difficulty adjusting or coping with psychosocial stressors that do not impair cognitive abilities; the diagnosis would not impact ability to know right from wrong and understand the consequences. However, although the FAP case was closed, the Board could consider possible IPV with the applicant the victim. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board considered the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant’s Adjustment Disorder and possible IPV outweighed the basis for applicant’s separation – the applicant committed adultery with a person not the spouse – the applicant made a false official statement in referring to a spouse being pregnant, and the applicant failed to provide adequate financial support for a spouse and child. b. Response to Contention(s): (1) The applicant contends there was long standing honorable service prior to the misconduct which led to the separation. The Board considered the totality of the applicant’s service record but determined the applicant’s discharge was appropriate because the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army and was prejudicial to good order and discipline. By committing adultery with a person not a spouse, making a false official statement in referring to a spouse being pregnant, and the applicant failing to provide adequate financial support for a spouse and child, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (2) The applicant contends being separated from the applicant’s spouse for more than two years, and the ex-spouse refused to sign the divorce paperwork based on monetary reasons, and mistakenly referring to applicant’s significant other as a spouse. The Board considered this contention non-persuasive during its deliberations. The Board considered the 15-6 investigation of the events surrounding the applicant’s misconduct and noted the multiple false official statements, one of which being made to a commissioned officer, each made with the intent to deceive and each known to be false relating to the applicant’s adultery, and the Board determined the applicant’s assertion did not outweigh the basis for separation. c. The Board determined that the discharge is, at this time, proper and equitable, considering the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contentions that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant’s Adjustment Disorder and possible IPV did not excuse or mitigate the basis for applicant’s separation – the applicant committed adultery with a person not a spouse, the applicant made a false official statement in referring to a spouse being pregnant, and the applicant failed to provide adequate financial support for a spouse and child. 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. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, as the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: 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 N/A – Not applicable NCO – Noncommissioned Officer NIF – Not in File NOS – Not Otherwise Specified OAD – Ordered to Active Duty OBH (I) – Other Behavioral Health (Issues) OMPF – Official Military Personnel File PTSD – Post-Traumatic Stress Disorder RE – Re-entry 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 ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20200002465 1