1. Applicant’s Name: a. Application Date: 7 May 2020 b. Date Received: 12 May 2020 c. Counsel: Yes 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, through counsel, an upgrade to honorable, and a change to the reentry (RE) code to 1, and narrative reason to “Secretarial Authority,” and removal of derogatory information. The applicant seeks relief contending, in effect, the discharge is inequitable and has served its purpose. This appeal will have a significant impact on the applicant’s ability to receive proper benefits and recognition. b. Board Type and Decision: In a records review conducted on 21 June 2023, 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: Unacceptable Conduct / AR 600-8-24, Chapter 4-2B / JNC / General (Under Honorable Conditions) b. Date of Discharge: 1 May 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 26 March 2013 (2) Basis for Separation: The applicant was informed to show cause for retention on active duty under the provisions of AR 600-8-24, paragraphs 4-2b for misconduct, moral, or professional dereliction due to the following reasons: Substantiated derogatory information filed in the Army Military Human Resource Record (AMHRR), namely the General Officer Memorandum of Reprimand (GOMOR), dated 28 June 2012, that was permanently filed in the official military personnel file, Army Regulation (AR) 600-37, paragraph 3-4b. Conduct unbecoming an officer as indicated by the above referenced GOMOR. (3) Legal Consultation Date: 23 May 2013 (4) Board of Inquiry (BOI): On 24 June 2013, the BOI adjourned. The BOI recommended that the applicant be separated from the Army with a general (under honorable conditions). (5) GOSCA Recommendation Date / Characterization: On 23 August 2013, the GOSCA recommended the applicant be separated from service. / Honorable (6) DA Board of Review for Eliminations: On 1 November 2013, the Army Board of Review for Eliminations convened to review the action of the BOI which recommended elimination of the applicant. The elimination action was initiated by Commanding General, United States Human Resources Command for unacceptable conduct in accordance with AR 600-8-24, paragraph 4-2b. The DA Board recommended to eliminate the applicant. / Honorable (7) Separation Decision Date / Characterization: 23 March 2015 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Appointment: 14 May 2005 / NIF b. Age at Appointment: / Education: 23 / Bachelor’s Degree c. Highest Grade Achieved / MOS / Total Service: O-3 / 38A 5P, Civil Affairs, 25A 5P, Signal, General / 15 years, 8 months, 9 days d. Prior Service / Characterizations: USAR (Enlisted), 23 August 1999 - 13 May 2005 / HD AD, 7 June 2000 - 7 February 2001 / HD (Concurrent Service) USAR (Officer) 14 May - 4 June 2005 / HD RA, 5 June 2005 - 1 May 2015 / GD e. Overseas Service / Combat Service: SWA / Afghanistan (6 January 2007 - 13 April 2008), (6 February 2011 - 31 July 2011) f. Awards and Decorations: ICM-2CS, BSM-2, ARCOM-2, AAM, MUC, NDSM, GWOTSM, ASR, OSR, NATOMDL-2, CAB g. Performance Ratings: 21 October 2005 - 30 April 2008 / Best Qualified 30 April 2008 - 29 April 2011 / Best Qualified 30 April 2011 - 31 August 2013 / Best Qualified h. Disciplinary Action(s) / Evidentiary Record: GOMOR, dated 28 June 2012, reflects while the applicant was on temporary duty to Florida for Sexual Harassment Assault Response and Prevention (SHARP) training, the applicant assaulted a dancer from the Red Rose Gentlemen's Club by striking the dancer in the head with a bottle and then cutting the dancer in the arm with the broken bottle. Additionally, the applicant was observed with a Master Sergeant T__ both at the gentlemen's club and at the 7th Group Dining Facility behaving in a manner which is inconsistent with AR 600-20, Chapter 14 “Relationships between Soldiers of different rank.” The applicant’s conduct was inexcusable and unbecoming of an officer. DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 22 March 2013, reflects the applicant was flagged for Headquarters Department of the Army use only - Involuntary Separation (WA) effective 22 March 2013. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; legal brief; military records; partial elimination packet. 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 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers. (1) Paragraph 1-23, provides the authorized types of characterization of service or description of separation. (2) Paragraph 1-23a, states 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, or the final revocation of a security clearance under DODI 5200.02 and AR 380-67 for reasons that do not involve acts of misconduct for an officer. (3) Paragraph 1-23b, states an officer will normally receive a general (under honorable conditions) characterization of service when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A separation under general (under honorable conditions) normally appropriate when an officer: Submits an unqualified resignation; Separated based on misconduct; discharged for physical disability resulting from intentional misconduct or neglect; and, for final revocation of a security clearance. (4) Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty. (5) Paragraph 4-2b, prescribes for the elimination of an officer for misconduct, moral or professional dereliction, or in the interests of national security. (6) Paragraph 4-20a (previously 4-24a), states an officer identified for elimination may, at any time during or prior to the final action in the elimination case elect one of the following options: (1) Submit a resignation in lieu of elimination; (2) request a discharge in lieu of elimination; and (3) Apply for retirement in lieu of elimination if otherwise eligible. 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 “JNC” 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. 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, through counsel, requests an upgrade to honorable, and a change to the RE code to 1, and narrative reason to “Secretarial Authority,” and removal of derogatory information. The applicant’s AMHRR, the issues, and documents submitted with the application were carefully reviewed. The applicant, through counsel contends, in effect, the RE code should be changed to 1. Block 27 (RE Code) of the applicant’s DD Form 214 shows as “NA.” The applicant’s DD Form 214 does not have an RE code. There is no basis for changing the DD Form 214 order. The applicant, through counsel contends, in effect, the narrative reason for the discharge should be changed to “Secretarial Authority.” The applicant was separated under the provisions of Chapter 4, paragraph 4-2b, 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 “JNC.” Army Regulation 635-8, Separation Processing and Documents, governs preparation of the DD Form 214 and dictates the 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 no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant, through counsel, requests removal of this derogatory information from the applicant’s AMHRR. The applicant’s request does not fall within this board’s purview. 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, through counsel contends, in effect, that this appeal will have a significant impact on the applicant’s ability to receive proper benefits and recognition. The Board does not grant relief to obtain benefits and recognition. 9. 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: Major Depressive Disorder, Post Traumatic Stress Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the diagnoses of MDD and PTSD were made during active service. VA service connection for PTSD establishes it occurred during 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 there are no mitigating BH conditions. While the applicant has been diagnosed with MDD and PTSD, neither of these conditions mitigates the offenses of physical assault and engagement in an inappropriate relationship as neither of these conditions results in an inability to distinguish right from wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the available evidence did not support a conclusion that the applicant’s Major Depressive Disorder or PTSD outweighed the applicant’s medically unmitigated offenses of physical assault and engagement in an inappropriate relationship. b. Response to Contention(s): (1) The applicant contends that the discharge was inequitable at the time. The Board considered this contention but determined that the applicant’s discharge was proper and equitable in view of the applicant’s misconduct of physical assault and engaging in an inappropriate relationship and there being insufficient evidence of in-service factors that mitigate or excuse the misconduct. Therefore, a discharge upgrade is not warranted. (2) The applicant contends that the discharge was procedurally defective. The Board considered this contention but found insufficient evidence in the applicant’s AMHRR or applicant-provided evidence to support this contention. Therefore, a discharge upgrade is not warranted. (3) The applicant contends that the discharge is unfair at the current time. The Board considered this contention but determined that the applicant’s discharge is still proper and equitable in view of the applicant’s misconduct of physical assault and engaging in an inappropriate relationship and there being insufficient evidence of in-service factors that mitigate or excuse the misconduct. Therefore, a discharge upgrade is not warranted. 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 contention(s) 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 Major Depressive Disorder or Post Traumatic Stress Disorder did not outweigh the medically unmitigated offenses of physical assault and engagement in an inappropriate relationship. The Board also considered the applicant's contentions regarding inequity and impropriety of the discharge and found that the totality of the applicant's record does not warrant a discharge upgrade. 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. Therefore, the applicant’s General discharge was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to Honorable discharge. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, and the reason the applicant was discharged 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 / 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 AR20200007063 1