1. Applicant’s Name: a. Application Date: 26 June 2020 b. Date Received: 30 June 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 under other than honorable conditions. The applicant requests an upgrade to honorable or general (under honorable conditions) and to change the separation authority, separation program designator (SPD) code, and the narrative reason to Secretarial Plenary Authority. The applicant seeks relief contending, in effect, the applicant’s mental health provider states the applicant’s behavior was impacted by other factors. Post active duty the applicant’s conduct and behavior has been exemplary. The applicant was threatened that if the applicant did not waive rights to a board of inquiry (BOI), the applicant would be sent to Fort Leavenworth to disciplinary barracks. Due to a perplexing lack of legal advice, the applicant’s resignation was submitted to the Human Resources Command (HRC) without any supporting documentation or legal arguments from the applicant or the trial defense counsel as to why the applicant deserved at least a general discharge. The applicant was under the influence of alcohol when the applicant used a controlled substance. An article in the Army Times, dated 5 April 2019, titled “Soldiers can now get counseling for a drinking problem and stay deployable” states Soldiers can now seek help for a drinking problem without it affecting their ability to do their job, and without fear of facing separation, according to a memorandum, dated 25 March 2019, from the Secretary of the Army. The applicant was in during a time where a stigma was attached to seeking treatment. Places like Fort Bragg, Fort Campbell and the like have a "high-speed" mentality and asking for help is not easy. It is clear, the applicant was abusing alcohol which in turn led to a series of horrible mistakes on one night. It is also clear that while the applicant was at Fort Bragg the mentality the applicant was surrounded by was “work hard, play hard." So, on the one hand, the Army espouses getting information, getting treatment and changing policy, but it is not as easy as it sounds to step forward and say "hey, I think I am headed towards a problem …” Counsel argues that all documents signed by the applicant were coerced. In a memorandum the general officer show cause authority (GOSCA) makes mention: “On 13 April 2014, I approved [the applicant’s] offer to plead guilty to charges under Article 15, Uniform Code of Military Justice. [The applicant] agreed to resign in lieu of elimination once notified for administrative separation, and unconditionally waived [the applicant] right to board proceedings.” After receiving a General Officer Article 15 and general officer memorandum of reprimand (GOMOR), then further threatened with a general court martial, it takes consent, "knowing" and "agreement" off the table. This was all a ploy to get the applicant to waive rights to a BOI. There was no concern for the applicant’s mental health. The applicant should have been allowed to proceed to a BOI and explain the applicant’s side, but instead the applicant was forced to waive rights to a BOI. When the applicant submitted the resignation with assistance of Trial Defense Counsel, counsel should have drafted a memorandum in mitigation and made a case for a general discharge. HRC could have made a different decision however, none of this is in the applicant’s file. HRC literally looked at the file in a vacuum without any explanation. Respectfully, the applicant had a one-time issue, one bad night, for which punishment was imposed via a General Officer Article 15 and GOMOR, this should be enough. The applicant is unable to use the criminal justice degree received while in Reserve Officers' Training Corps and cannot obtain a pilot license for promotion to air crew pilot due to the under other than honorable conditions discharge. Counsel and the applicant further details the contentions in an allied legal brief and an allied self-authored statement provided with the application. b. Board Type and Decision: In a records review conducted on 12 July 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 and 4-24A(1) / BNC / Under Other Than Honorable Conditions b. Date of Discharge: 18 July 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 22 April 2014 (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: On 7 October 2013, the applicant wrongfully used cocaine and purchased cocaine with enlisted members assigned to the applicant’s platoon. On 7 October 2013, the applicant committed fraternization with junior enlisted members by drinking alcohol and wrongfully using cocaine with them. (3) Legal Consultation Date: 23 April 2014 (4) Board of Inquiry (BOI): On 23 April 2014, the applicant unconditionally waived consideration of the case before a BOI. (5) GOSCA Recommendation Date / Characterization: On 29 May 2014, the GOSCA recommended approval of the applicant’s request for resignation in lieu of elimination from service / Under Other Than Honorable Conditions (6) DA Board of Review for Eliminations: On 1 July 2014, the Army Board of Review for Eliminations considered the GOSCA’s request to involuntary separate the applicant for unacceptable conduct in accordance with AR 600-8-24, Chapter 4-2b. (7) Separation Decision Date / Characterization: 1 July 2014 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Appointment: 21 May 2010 / NIF b. Age at Appointment: / Education: 22 / Bachelor’s Degree c. Highest Grade Achieved / MOS / Total Service: O-2 / 13A Field Artillery, General / 4 years, 2 months, 1 day d. Prior Service / Characterizations: NA e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM-3, NDSM, GWTSM, ASR / The applicant’s AMHRR reflects award of a 4th AAM, however, the award is not reflected on the DD Form 214. g. Performance Ratings: 8 February 2011 - 15 January 2012 / Best Qualified 16 January 2012 - 15 January 2013 / Best Qualified 1 May 2013 - 1 November 2013 / Do Not Promote 2 November 2013 - 12 June 2014 / Signed and Incomplete h. Disciplinary Action(s) / Evidentiary Record: GOMOR, undated, reflects the applicant demonstrated extremely poor judgement by ingesting cocaine with subordinates from the applicant’s platoon on 7 October 2013. Electronic Copy of DD Form 2624, dated 22 October 2013, reflects the applicant tested positive for COC 274 (cocaine), during an Inspection Unit (IU) urinalysis testing, conducted on 8 October 2013. Charge Sheet, dated 12 November 2013, reflects the applicant was charged with: violation of the Uniform Code Of Military Justice (UCMJ), Article 112a, for wrongfully using cocaine on 7 October 2013; and, violation of the UCMJ, Article 133, for wrongfully and dishonorably purchase cocaine with enlisted Soldiers assigned to the applicant’s platoon on 7 October 2013, which was conduct unbecoming an officer and a gentleman. FG Article 15, dated 16 May 2014, for wrongfully and dishonorably purchase cocaine with enlisted Soldiers assigned to the applicant’s platoon on 7 October 2013. Between on or about 6 October 2013 and on or about 7 October 2013, knowingly fraternized with three enlisted Soldiers from the applicant’s platoon by consuming alcohol and using cocaine with the Soldiers. And wrongfully using cocaine on 7 October 2013. The punishment consisted of forfeiture of $2,195.00 pay per month for 2 months; 30 days arrest in quarters; and a written reprimand. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Substance abuse evaluation letter, dated 5 July 2017, states the applicant was referred to therapy for an aviation medical examination. Post-traumatic stress disorder (PTSD) was ruled out and the applicant did not meet criteria for depressive or anxiety disorders. The applicant was diagnosed for alcohol abuse in full remission. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Legal Brief with all listed enclosures 1 through 6. 6. POST SERVICE ACCOMPLISHMENTS: The applicant completed an associates of Applied Science in Geographic Information Sciences that allowed the applicant to get a job as an air crew systems operator for Aero-Graphics since January 2017 and have since been promoted to a ground survey position. The applicant participated in a substance abuse program and maintained to this day a strong mental check against any excess consumption of alcohol. 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) Paragraph 1-23c, states a discharge under other than honorable conditions is an administrative separation from the service. A discharge certificate will not be issued. An officer will normally receive an under other than honorable conditions when he or she: Resigns for the good of the Service; is dropped from the rolls (DFR) of the Army in accordance with paragraph 5–9; (3) is involuntarily separated due to misconduct, moral or professional dereliction, or for the final revocation of a security clearance under DODI 5200.02 and AR 380-67 as a result of an act or acts of misconduct, including misconduct for which punishment was imposed; and, is discharged following conviction by civilian authorities. (5) Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty. (6) Paragraph 4-2b, prescribes for the elimination of an officer for misconduct, moral or professional dereliction, or in the interests of national security. (7) 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 “BNC” 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 requests an upgrade to honorable or general (under honorable conditions) and change separation authority, SPD code, and narrative reason to Secretarial Plenary Authority. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 4, paragraph 4-2b, AR 600-8-24 with a Under Other Than Honorable Conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Unacceptable Conduct,” and the separation code is “BNC.” 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, 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 contends the SPD code should be changed to Secretarial Plenary Authority. The SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. The SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations. The SPD code specified by Army Regulations for a discharge under Chapter 4, paragraph 4-2b, is “BNC.” The applicant contends, in effect, the applicant was threatened that if the applicant did not waive rights to a BOI, the applicant would be sent to Fort Leavenworth to disciplinary barracks. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention. The applicant contends, in effect, due to a perplexing lack of legal advice, the applicant’s resignation was submitted to the HRC without any supporting documentation or legal arguments from the applicant or the trial defense counsel as to why the applicant deserved at least a general discharge. In the applicant’s resignation memorandum dated 23 April 2014, the applicant states to have been advised that prior to submitting the resignation the applicant may, at the applicant’s option, consult with, and be represented by legally qualified counsel who may be a member of the Judge Advocate General's Corps or civilian counsel retained by the applicant. The applicant choose counsel from the Judge Advocate General's Corps and states to have been fully advised. There is no evidence in the AMHRR the applicant ever complained of poorly represented counsel. The applicant contends, in effect, to have been under the influence of alcohol when the applicant used a controlled substance. The applicant’s counsel provided an article from the Army Times, dated 5 April 2019, titled “Soldiers can now get counseling for a drinking problem and stay deployable” which states Soldiers can now seek help for a drinking problem without it affecting their ability to do their job, and without fear of facing separation, according to a memorandum, dated 25 March 2019, from the Secretary of the Army. There is no evidence the applicant ever sought treatment for alcohol abuse while in service. The applicant contends, in effect, all documents signed by the applicant were coerced. In a memorandum the GOSCA makes mention: “On 13 April 2014, I approved [the applicant’s] offer to plead guilty to charges under Article 15, Uniform Code of Military Justice. [The applicant] agreed to resign in lieu of elimination once notified for administrative separation, and unconditionally waived [the applicant] right to board proceedings.” After receiving a General Officer Article 15 and GOMOR, then further threatened with a general court martial, it takes consent, "knowing" and "agreement" off the table. This was all a ploy to get the applicant to waive rights to a BOI. Charges were preferred against the applicant in November 2013 with a recommendation of a general court martial. On 25 March 2014, the applicant in exchange for dismissing the pending charges, voluntarily offered to plead guilty at proceedings convened under Article 15, UCMJ and to further immediately submit a resignation in lieu of elimination, unconditionally waiving board proceedings, under AR 600-8-24, paragraph 4-24. The applicant contends, in effect, there was no concern for the applicant’s mental health. The applicant provided a substance abuse evaluation letter, dated 5 July 2017, that states PTSD was ruled out and the applicant did not meet criteria for depressive or anxiety disorders. The applicant was diagnosed for alcohol abuse in full remission. The AMHRR is void of a mental status evaluation / behavioral health evaluation. The applicant contends, in effect, the applicant’s trial defense counsel should have drafted a memorandum in mitigation and made a case for a general discharge to assist with HRC’s decision. The applicant’s resignation dated 23 April 2014 states the applicant choose to waive submitting matters in explanation, rebuttal, or defense concerning the allegations in the case. The applicant contends, in effect, the applicant had a one-time issue, one bad night, for which punishment was imposed via a General Officer Article 15 and GOMOR, this should be enough. AR 600-8-24, paragraph 1-23, states characterization normally will be based on a pattern of behavior and duty performance rather than an isolated incident. However, there are circumstances in which conduct reflected by a single incident may provide the basis of characterization of service. Two of the third party statements provided with the application speak highly of the applicant’s professionalism and work ethics while serving in the military. Three of the third party statements speak to the applicant’s good conduct and work ethics after leaving the Army. 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? 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 applicant contends the applicant was threatened that if the applicant did not waive rights to a BOI, the applicant would be sent to Fort Leavenworth to disciplinary barracks. The Board considered this contention and determined that the applicant voluntarily tendered resignation under the advisement of counsel. The Board found insufficient evidence to support that applicant’s voluntary resignation was not part of a standard plea-bargain. Therefore, a discharge upgrade is not warranted. (2) The applicant contends due to a perplexing lack of legal advice, the applicant’s resignation was submitted to the HRC without any supporting documentation or legal arguments from the applicant or the trial defense counsel as to why the applicant deserved at least a general discharge. The Board considered this contention but found insufficient evidence to support the contention. Therefore, a discharge upgrade is not warranted. (3) The applicant contends all documents signed by the applicant were coerced. The Board considered this contention, but noted that the applicant’s AMHRR contains applicant’s voluntary resignation, a document made with advisement with counsel. (4) The applicant contends the applicant had a one-time issue, one bad night, for which punishment was imposed via a General Officer Article 15 and GOMOR, this should be enough. The Board considered this contention, but determined that applicant’s misconduct was of a severity to an Unacceptable Conduct discharge under AR 600-8-24, paragraph 4-2B and 4-24A(1). Therefore, a discharge upgrade is not warranted. (5) The applicant contends the applicant’s trial defense counsel should have drafted a memorandum in mitigation and made a case for a general discharge to assist with HRC’s decision. The Board considered this contention but found it unpersuasive during deliberations. Therefore, a discharge upgrade is not warranted. 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 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 to all the evidence before the Board, the applicant was not found to hold a behavioral health condition that would excuse or mitigate applicant’s illegal drug and fraternization offenses. The Board also considered the applicant's contentions coercion and the effectiveness of applicant’s TDS counsel 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 Under Other Than Honorable Conditions discharge was proper and equitable as the applicant’s conduct fell below that level of satisfactory service warranting a General discharge or 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 AR20200008355 1