1. Applicant's Name: a. Application Date: 20 March 2020 b. Date Received: 23 March 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, that served honorably in unit even after being informed of being court-martialed for adultery. The applicant was in the court-martial process from May 2012 until summary court martial in September 2013. During this time, experienced extreme prejudice to the point of seeking help from the many services that the chaplain offered and was eventually transferred from platoon to company headquarters platoon after Captain N.S. and First Sergeant J.R., took command. The applicant understands the mistake, and was doing everything possible to prove of not being a cancerous Soldier and desired to serve the country. The applicant took the punishment as a grown up, owned up to the actions, pled guilty to offenses, and took whatever punishment was given by those in command. The applicant's family is now stronger than ever and the applicant and spouse are stronger today than they have ever been together. The applicant now serves the community and the state of Oklahoma by working in the Department of Corrections as a training sergeant. The military helped the applicant gain the skills needed for new career, but wishes to be recognized for honorable service during time in the military, made just one mistake in the 30 months in the military. b. Board Type and Decision: In a records review conducted on 22 March 2023, and by a 4-1 vote, the Board determined the discharge is inequitable based on the applicant's solitary offense listed in official records, acceptance of responsibility, time elapsed since discharge, post-service accomplishments, and the fact that the spouse forgave the applicant. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. 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-3 / General (Under Honorable Conditions) b. Date of Discharge: 4 February 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 17 December 2013 (2) Basis for Separation: The applicant was informed of the following reasons: for wrongfully having sex with M.C., a person that was not the spouse between 20 May 2012 and 22 May 2012, was found guilty of adultery in a Summary Court-Martial on 11 September 2013. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 July 2011 / 4 years, 16 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 124 c. Highest Grade Achieved / MOS / Total Service: E-2 / 11B10, Infantryman / 2 years, 6 months, 23 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Summary Court-Martial, dated 17 September 2013, for adultery. The punishment consisted of reduction to E-1, hard labor without confinement for 14 days, and restriction to the limits of to and from residence and Fort Hood, Texas for 45 days. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): NIF (1) Applicant provided: NIF (2) AMHRR Listed: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; partial separation packet; partial Summary Court-Martial documents; state of Oklahoma Performance Management Process (PMP) report; employment history; residential history; references/relatives listing; and DD Form 214 for the period of service under review. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends now serves community and the state of Oklahoma by working in the Department of Corrections as a training sergeant. 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) 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, 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. 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-3 Applies to: Person who is not considered fully q Misconduct (Serious Offense) / AR 635-200 / Chapter 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions ualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. 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 honorable. The applicant's available Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant's AMHRR is void of the complete facts and circumstances concerning the events which led to the discharge from the Army. The record does indicate separation action was initiated against the applicant for wrongfully having sex with M.C., a person that was not the spouse between 20 May 2012 and 22 May 2012, found guilty of adultery in a Summary Court- Martial on 11 September 2013. The applicant's AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason of Misconduct (Serious Offense), with a characterization of service of General, (Under Honorable Conditions). The applicant seeks relief contending that he served honorably in the unit even after being informed that the applicant was being court-martialed for adultery. During this time, the applicant experienced extreme prejudice to the point that the applicant had to seek help from the many services that the chaplain offered and was eventually transferred from the platoon to the company's headquarters platoon after Captain N.S. and First Sergeant J.R., took command. The applicant now serves the community and the state of Oklahoma by working in the Department of Corrections as a training sergeant. The military helped the applicant to gain the skills needed for new career, but the applicant wishes to be recognized for honorable service during the time in the military; the applicant made one mistake in the 30 months of service. The applicant's contentions were noted, and the applicant is to be commended on the in-service and post-service accomplishment. However, it should also be noted the service record indicates the applicant committed a discrediting offense, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. 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? No. The Board's Medical Advisor reviewed DoD and VA medical records and found no mitigating BH diagnoses on the applicant. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused or mitigated a discharge. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): (1) The military helped gain the skills needed for new career, but wishes to be recognized for honorable service since only made one mistake in the 30 months of service. The Board considered this contention and determined the discharge is inequitable based in part on the applicant's solitary offense listed in official records, acceptance of responsibility, and the time elapsed since discharge, in support of this contention. (2) The applicant seeks relief contending serving honorably in the unit even after being informed of being court-martialed for adultery; during this time, the applicant experienced extreme prejudice to the point of seeking help from the many services that the chaplain offered and was eventually transferred from platoon to company headquarters platoon after Captain N.S. and First Sergeant J.R., took command. The Board considered this contention and determined the discharge is inequitable based in part on the totality of the applicant's service record to include actions pre- and post-misconduct and the applicant's contention of prejudice while awaiting court martial proceedings, in support of this contention. (3) The applicant contends now serves community and the state of Oklahoma by working in the Department of Corrections as a training sergeant. The Board considered this contention and determined the discharge is inequitable based in part on the applicant's post- service accomplishments and the face that the spouse forgave the applicant, in support of this contention. c. The Board determined the discharge is inequitable based on the applicant's solitary offense listed in official records, acceptance of responsibility, time elapsed since discharge, post-service accomplishments, and the fact that the spouse forgave the applicant. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's solitary offense listed in official records, acceptance of responsibility, time elapsed since discharge, post-service accomplishments, and the fact that the spouse forgave the applicant. Thus, the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (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: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change e. Change Authority to: AR 635-200, paragraph 14-12a 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 AR20200005697 1