1. Applicant’s Name: a. Application Date: 1 May 2020 b. Date Received: 5 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 an upgrade to honorable, a narrative reason change, a separation code change, and a reentry code change. The applicant seeks relief contending, in effect, the Separation Board committed legal error when it considered incompetent and improper evidence, in violation of the applicant’s constitutional and statutory rights, and determined the applicant should be administratively separated under AR 635-200, paragraph 14-12c with a General (under honorable conditions) character of service. The Separation Board erred when it admitted evidence protected under the 5th Amendment and Article 31(b), UCMJ. The discharge was based on numerous legal errors, including infringements on the constitutional rights under the 4th and 5th Amendments. It is inequitable, improper, and unjust to characterize the service as anything other than honorable, because the applicant’s service has been honorable and faithful. The characterization of the discharge was inconsistent with the standards of due process and discipline in the US Army. b. Board Type and Decision: In a records review conducted on 7 April 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: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 4 July 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 10 February 2017 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant committed adultery and fraternization with a junior enlisted service member and a commissioned officer, between 20 February 2014 and 9 January 2017. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 2 March 2017 (5) Administrative Separation Board: On 23 March 2017, the applicant, as a respondent, was referred to an administrative separation board. On 31 March 2017, the applicant was notified to appear before an administrative separation board and advised of rights. On 25 April 2017, the administrative separation board convened, and the applicant appeared with counsel. The board determined: The applicant, a married person, did at Fort Bragg, between 20 February 2014 and 29 December 2016, wrongfully have sexual intercourse with 1LT R. L. P., a person not the spouse, conduct being prejudicial to good order and discipline in the Armed Forces and being of a nature to bring discredit upon the Armed Forces, in violation of Article 134, UCMJ. The applicant did at Fort Bragg between 20 February 2014 and 29 December 2016, violated a lawful general regulation, to wit: paragraph 4-14c(2), AR 600-20, dated 6 November 2014, by wrongful fraternization with 1LT R. L. P., in violation of Article 92, UCMJ. The applicant did at Fort Bragg, between 20 February 2014 and 29 December 2016, violate a lawful general regulation, to wit: paragraph 4-14b, AR 600-20, dated 6 November 2014, by wrongful fraternization with SPC K. L. D., in violation of Article 92, UCMJ. The board recommended the applicant’s discharge with characterization of service of general (under honorable conditions). (6) Separation Decision Date / Characterization: 28 April 2017 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 November 2016 / 4 years b. Age at Enlistment / Education / GT Score: 26 / High School Graduate / 101 c. Highest Grade Achieved / MOS / Total Service: E-5 / 92F20, Petroleum Supply Specialist / 7 years, 9 months, 13 days d. Prior Service / Characterizations: RA, 22 September 2009 – 24 October 2013 / HD RA, 25 October 2013 – 19 January 2015 / HD RA, 20 January 2015 – 9 November 2016 / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (7 November 2010 – 26 October 2011) f. Awards and Decorations: ARCOM, AAM-4, MUC, AGCM-2, NDSM, GWOTSM, KDSM, ICM-CS, NCOPDR, ASR, OSR, CAB g. Performance Ratings: 15 January 2016 – 14 January 2017 / Qualified h. Disciplinary Action(s) / Evidentiary Record: A Developmental Counseling Form for acts of misconduct. Memorandum, dated 9 January 2016 (sic), subject: Findings and Recommendations for AR 15-6 Investigation – Fraternization and Adultery Allegations Against 1LT R. P., SGT M. D. R., and SPC K. D. with Report of Proceedings by Investigating Officer, dated 9 January 2017, reflects the investigating officer found: Based on the preponderance of evidence, 1LT P. likely fraternized and committed adultery with SGT R (the applicant), a married person; SGT R. (the applicant), a married person, likely fraternized and committed adultery with 1LT P. and with SPC D.; and SPC D. likely fraternized with SGT R. (the applicant). The investigating officer recommended: 1LT P. be administered a UCMJ action for fraternization and adultery with SGT R. (the applicant), remain under a no-contact order, and administer a class on fraternization and adultery to the unit. SGT R. (the applicant) be administered UCMJ action for fraternization and adultery with 1LT P. and for fraternization with SPC D., remain under a non-contact order with both Soldiers, and to administer a class on fraternization and adultery to the unit; and SPC D. be administered UCMJ action for fraternization wit SGT R. (the applicant), remain under a no-contact order with the applicant, and be reassigned to a unit other than the current unit. Report of Mental Status Evaluation (pages 1 and 3 only), dated 3 February 2017, reflects the applicant was psychologically cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. Memorandum Of Reprimand, dated 8 February 2017, reflects the applicant was reprimanded for actions being completely unacceptable based on an AR 15-6 Preliminary Investigation finding the applicant violated the Army Fraternization Policy and engaged in adultery with a Lieutenant in the battalion. Verbatim Findings and Recommendations by an Administrative Separation Board as described in previous paragraph 3c (5). i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Medical History, dated 2 February 2017, the applicant noted behavioral health issues and the examining medical physician noted in the comments section: Applicant “would follow up as needed or sooner for worsening symptoms.” 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, and attorney brief and listed attachments. 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) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (6) Paragraph 14-12c 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-3 Applies to: Person who is not considered fully qualified 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, a narrative reason change, a separation code change, and a reentry code change. 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 14, paragraph 14-12c, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Misconduct (Serious Offense),” and the separation code is “JKQ.” Army Regulation 635-8, Separation Processing and Documents, governs the 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 as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends the separation code (SPD) should be changed. Separation 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 14, paragraph 14-12c, is “JKQ.” The applicant requests a reentry eligibility (RE) code change. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-201, the applicant was appropriately assigned an RE code of “3.” An RE Code of “3” indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army’s needs at the time and are required to process waivers of reentry eligibility (RE) codes if appropriate. The applicant contends the Separation Board committed legal error when it considered incompetent and improper evidence, in violation of the applicant’s constitutional and statutory rights by admitting evidence protected under the 5th Amendment and Article 31(b), UCMJ; and the discharge was based on numerous legal errors, including infringements on the constitutional rights under the 4th and 5th Amendments. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends it is inequitable, improper, and unjust to characterize the service as anything other than honorable, because the applicant’s service has been honorable and faithful. The Board will consider the applicant’s service, including a combat tour, and the service accomplishments and the quality of service according to the DODI 1332.28. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially mitigating diagnoses: The applicant held in- service diagnoses of Adjustment Disorder, Unspecified Mood Disorder, Anxiety Disorder, Depressive Disorder, and likely Narcissistic and/or Antisocial Personality Disorder. Post-service, the applicant is diagnosed with combat related PTSD with additional diagnosis of Major Depressive Disorder (MDD). (2) Did the condition exist, or experience occur during military service? Yes. The applicant held in-service diagnoses of Adjustment Disorder, Unspecified Mood Disorder, Anxiety Disorder, Depressive Disorder, and likely Narcissistic and/or Antisocial Personality Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor determined that the applicant medical conditions – in service diagnoses of Adjustment Disorder, Unspecified Mood Disorder, Anxiety Disorder, Depressive Disorder, and likely Narcissistic and/or Antisocial Personality Disorder do not mitigate the basis for separation: committed adultery, fraternization with a junior enlisted service member and a commissioned officer - as there is no nexus between the conditions and the misconduct. (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB’s application of liberal consideration, the board concurred with the opinion of the Board’s Medical Advisor, a voting member, that the applicant’s committed adultery, fraternization with a junior enlisted service member and a commissioned officer outweighed outweigh the applicant’s OBH/PTSD diagnoses for the reasons listed in (3) above. b. Response to Contention(s): (1) The applicant contends the narrative reason, SPD code for the discharge needs changed. The Board considered this contention and determined that the applicant received the appropriate narrative reason and SPD code for the discharge specified by AR 635-200, paragraph 14-12c / JKQ. Therefore, no change is warranted. (2) The applicant requests a reentry eligibility (RE) code change. The Board considered this contention and voted to maintain the RE-3 due to the length and repeated nature of the adultery and fraternization charges. (3) The applicant contends the separation board committed legal error when it considered incompetent and improper evidence, in violation of the applicant’s constitutional and statutory rights by admitting evidence protected under the 5th Amendment and Article 31(b), UCMJ, and the discharge was based on numerous legal errors, including infringements on the constitutional rights under the 4th and 5th Amendments. The record confirms 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 the applicant’s committing adultery, fraternization with a junior enlisted service member and a commissioned officer, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (4) The applicant contends it is inequitable, improper, and unjust to characterize the service as anything other than honorable, because the applicant’s service has been honorable and faithful. The Board considered this contention and the applicant’s assertion of inequity, improper, and unjust characterization. However, the Board determined that there is no evidence of said inequity, improper, and unjust characterization in the applicant’s official records, and the applicant did not provide supporting documentation to overcome the presumption of regularity in the discharge process. Ultimately, the Board determined that the assertion alone did not outweigh the applicant committing adultery, fraternization with a junior enlisted service member and a commissioned officer. 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, the applicant’s OBH and PTSD diagnoses did not mitigate the offenses of committing adultery, fraternization with a junior enlisted service member and a commissioned officer. 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, and the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: Legend: AWOL – Absent Without Leave AMHRR – Army Military Human Resource Record BCD – Bad Conduct Discharge BH – Behavioral Health CG – Company Grade Article 15 CID – Criminal Investigation Division ELS – Entry Level Status FG – Field Grade Article 15 GD – General Discharge HS – High School HD – Honorable Discharge IADT – Initial Active Duty Training MP – Military Police MST – Military Sexual Trauma N/A – Not applicable NCO – Noncommissioned Officer NIF – Not in File NOS – Not Otherwise Specified OAD – Ordered to Active Duty OBH (I) – Other Behavioral Health (Issues) OMPF – Official Military Personnel File PTSD – Post-Traumatic Stress Disorder RE – Re-entry SCM – Summary Court Martial SPCM – Special Court Martial SPD – Separation Program Designator TBI – Traumatic Brain Injury UNC – Uncharacterized Discharge UOTHC – Under Other Than Honorable Conditions VA – Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20200008673 1