1. Applicant’s Name: a. Application Date: 11 November 2019 b. Date Received: 9 December 2019 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 under other than honorable conditions. the applicant requests an upgrade to general (under honorable conditions). The applicant seeks relief contending, in effect, the Administrative Separation Board convened to consider the case had several legal errors, which infringed upon the rights and unfairly prejudiced the outcome of the Board. The actions of the Board President and Recorder made it clear the hearing was not conducted in an impartial manner. The Board President exhibited bias and was either unaware or unwilling to follow applicable regulations. When the applicant elected to make an unsworn statement, the Board President became upset. During the statement, the President appeared frustrated and disinterested. The Recorder of the Board also materially prejudiced the right to a fair separation board proceeding—the Recorder tried to elicit information from the witnesses, which were unrelated to the actions leading to the separation. The defense counsel submitted a memorandum to the Convening Authority detailing the legal errors with the board proceedings and requested to set aside the findings and direct a new board for a fair hearing. The request was denied. b. Board Type and Decision: In a records review conducted on 23 September 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, Chapter 14-12c / JKQ / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 18 September 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 February 2019 (2) Basis for Separation: The applicant was informed of the following reasons: the applicant violated a lawful general regulation between (1 June 2018 and 30 September 2018), and the applicant wrongfully had sexual intercourse with PFC A. M., a person not the applicant’s spouse. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 21 February 2019 (5) Administrative Separation Board: On 21 February 2019, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon receiving a characterization of service no less favorable than general (under honorable conditions) discharge. On 23 April 2019, the applicant’s conditional waiver was denied. On 23 May 2019, the applicant was notified to appear before an administrative separation board and advised of the rights. On 11 June 2019, the administrative separation board convened, and the applicant appeared with counsel. The Board determined the allegations listed in the notification memorandum were supported by a preponderance of the evidence. The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions. On 4 September 2019, the separation authority approved the findings and recommendations of the administrative separation board. (6) Separation Decision Date / Characterization: 4 September 2019 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 6 December 2017 / 3 years b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 109 c. Highest Grade Achieved / MOS / Total Service: E-5 / 68W10, Health Care Specialist / 6 years, 3 months, 9 days d. Prior Service / Characterizations: RA, 10 June 2013 – 10 October 2016 / HD RA, 11 October 2016 – 5 December 2017 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (25 June 2016 – 21 March 2017), Qatar (11 September 2017 – 10 November 2017) f. Awards and Decorations: ARCOM, AAM-5, AGCM, NDSM, GWOTSM, ACM-CS, HSM, NCOPDR, ASR, NATOMDL, IRCM-CS g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Report of Proceedings by Investigating Officer, reports on 16 October 2018 and 18 October 2018, an investigation was conducted on the allegations of fraternization between the applicant and junior Soldiers in the Medic Platoon. The investigating officer reported the findings and recommendations. A Developmental Counseling Form for acts of misconduct. FG Article 15, dated 8 November 2018, for failing to obey a lawful general regulation by wrongfully having an inappropriate relationship with a Soldier who was in an initial entry training status (between 1 June 2018 and 5 August 2018); failing to obey a lawful general regulation by wrongfully compromising or appearing to compromise the integrity of supervisory authority by having an inappropriate relationship with PFC A. M. (between 6 August 2018 and 30 September 2018); and wrongfully having sexual intercourse with PFC A.M., a person not the applicant’s spouse, (between 6 August 2018 and 30 September 2018). The punishment consisted of a reduction to E-4; forfeiture of $1,245 pay per month for two months; extra duty and restriction for 45 days; and an oral reprimand. Report of Mental Status Evaluation, dated 11 January 2019, reflects the applicant was cleared from a psychological standpoint, for administrative separation under Chapter 14, AR 635-200. The applicant could understand the difference between right and wrong and could participate in the proceedings. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; DD Form 214; Memorandum, dated 10 July 2019; Admin Separation Board Summarized Transcript; sworn statements; and partial separation packet (limited to the separation board proceedings transcript). 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), 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) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) 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. (6) 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. (7) Paragraph 14-12c prescribes 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. 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 “JKQ” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 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 requests an upgrade to general (under honorable conditions). The applicant’s Army Military Human Resource Record (AMHRR) of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the Administrative Separation Board had several legal errors, which infringed upon the rights and unfairly prejudiced the outcome of the Board. The Board President exhibited bias and was either unaware or unwilling to follow applicable regulations when the applicant elected to make an unsworn statement. 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 the issue. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he was unjustly discharged. The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. The applicant contends the Recorder of the Board materially prejudiced the right to a fair separation board proceeding by trying to elicit information from the witnesses, which were unrelated to the actions leading to the separation. 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. 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 the following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: Depression; Adjustment DO with mixed emotional features. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found both Depression and Adjustment DO were diagnosed while applicant was in the Army. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that there are no mitigating BH conditions. While the applicant was diagnosed with Adjustment DO, Depression and reported having some trauma-related symptoms, none of these conditions or factors mitigate the offense of engaging in adultery as none of these conditions or factors affects one’s ability to understand right from wrong and act in accordance with the right and regulatory guidance. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board concurred with 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 DO, Depression, and the report of having some trauma-related symptoms outweighed the basis for applicant’s separation – adultery. b. Response to Contentions: (1) The applicant contends the Administrative Separation Board had several legal errors, which infringed upon the rights and unfairly prejudiced the outcome of the Board—the Board President exhibited bias and was either unaware or unwilling to follow applicable regulations when the applicant elected to make an unsworn statement. 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, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (2) The applicant contends the Recorder of the Board materially prejudiced the right to a fair separation board proceeding by trying to elicit information from the witnesses, which were unrelated to the actions leading to the separation There was no evidence presented to the Board to convince the Board of any circumstances that were not consistent with the procedural and substantive requirements of the regulation. The Board considered this contention and determined there is no evidence of the command acting in an arbitrary or capricious manner. c. The Board determined that the discharge is, at this time, proper and equitable, in light of 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, Depression and reports having some trauma-related symptoms, did not excuse or mitigate the offenses of adultery and wrongful sexual intercourse with an initial entry trainee. 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: NO a. Issue a New DD-214 / Separation Order: No Change 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 AR20200002594 1