1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 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, on three occasions, the board of inquiry’s president disregarded the regulation: the notice of two government witnesses was not submitted by the deadline; documents were admitted that had not been made available to the applicant’s counsel beforehand; and the applicant was allowed to be questioned by members despite the applicant’s choice not to respond to questions. The testimonies made by the government’s witnesses were all hearsay, and there was no proof that the incidents occurred. Contradictory statements would have been offered if the applicant and counsel were provided sufficient advance notification of the government witnesses’ statements. The government counsel went above what was necessary and influenced the board to ensure the applicant obtained an unjust less than honorable separation. It was never verified that the applicant’s voice was on the taped statement. Despite being forewarned, the board president allowed the government to testify throughout the hearing, which was not allowed. The Family Advocacy Office determined the accusations were unfounded. The applicant’s supervisor, LTC J., conducted an initial inquiry and an investigation, in violation of the regulations, and further blacked out the name and signature to hide the fact and the biased opinion. The applicant served 14 years on active duty with distinction. The review should be objective and consider circumstances rather than circumstantial baseless statements. The separation proceedings were unjust and lacking in impartiality. The applicant had over 23 years of untainted service after serving on active duty and in the Texas Army National Guard, which has now been tarnished and does not allow for any recourse to recoup the time served or the benefits to pass to the children. In a separate application, the applicant contends items discussed at the previous review board for a finding of general (under honorable conditions), was failure in judgment and the decisions were based on being misdiagnosed and not receiving treatment. The documented PTSD and ADHD were correctly diagnosed and are now being treated by the VA, associated with the rating of 100 percent and permanent disability. The applicant has obtained civilian employment with the Department of the Army, renewed the Secret Security Clearance, and completed the MBA. b. Board Type and Decision: In a records review conducted on 26 October 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: 3 February 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 December 2012 (2) Basis for Separation: The applicant was informed to show cause for retention on active duty under the provisions of AR 600-8-24, paragraph 4-18 for misconduct: On 8 June 2012, the applicant fraternized and consumed alcohol with junior enlisted Soldiers. On 9 June 2012, the applicant demanded a junior enlisted Soldier and an unlicensed minor dependent to drive and pick up the spouse. On 9 June 2012, the applicant slapped the spouse in the face, in plain view of others. On 9 June 2012, the applicant threatened the spouse in front of the children, stating the applicant would throw the spouse off the balcony. On 5 October 2012, the applicant physically abused the spouse by grabbing the spouse around the neck and shoulders and shoving the spouse into the wall. On 16 October 2012, the applicant made a false official statement, in that the applicant denied having threatened to throw the spouse from the balcony. (3) Legal Consultation Date: On 7 December 2012, the applicant tendered a resignation in lieu of elimination proceedings conditioned upon receiving an honorable discharge. On 16 April 2013, the Separation Authority did not accept the applicant’s resignation conditioned upon receiving no worse than an honorable discharge, and directed a Board of Inquiry, unless the applicant tendered an unconditional resignation in lieu of elimination. On 10 June 2013, the applicant submitted a resignation waiving further review in exchange for an honorable discharge. (4) Board of Inquiry (BOI): On 22 May 2013, the BOI recommended a General (Under Honorable Conditions) discharge for misconduct and moral or professional dereliction. (5) GOSCA Recommendation Date / Characterization: On 3 July 2013, the GOSCA recommended the applicant be involuntarily eliminated from service. / General (Under Honorable Conditions). (6) DA Board of Review for Eliminations: On 26 September 2013, 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: 9 October 2013 / General (Under Honorable Conditions) / The separation authority denied the applicant’s conditional resignation and approved the DA Board of Review for Eliminations recommendation to involuntarily discharge the applicant based on misconduct and moral or professional dereliction according to AR 600-8-24, paragraph 4-2b. 4. SERVICE DETAILS: a. Date / Period of Appointment: 16 December 2000 / Indefinite b. Age at Appointment: / Education: 29 / Bachelor’s Degree c. Highest Grade Achieved / MOS / Total Service: O-4 / 25A, Signal, General / 24 years, 17 days d. Prior Service / Characterizations: ARNG, 17 January 1990 – 13 February 1990 / NA IADT, 14 February 1990 – 26 July 1990 / UNC ARNG, 27 July 1990 – 16 January 1998 / NIF Break in service USACG ROTC, 20 January 1998 – 15 December 2000 Commissioned, 16 – 19 December 2000 (Concurrent Service) RA, 20 December 2000 – 3 February 2014 / GD e. Overseas Service / Combat Service: SWA, Germany, Japan / Iraq (1 April 2003 – 3 February 2004; 1 February 2011 – 1 October 2011) f. Awards and Decorations: BSM, MSM, ARCOM, JMUA, ARCAM, NDSM, GWOTEM, GWOTSM, ICM-CS, NCOPDR, ASR, OSR-4, AFRM / The applicant’s AMHRR reflects award of ARCOM-2 and AAM-2, ARCAM-3, NDSM-2, NCOPDR-2; however, the awards are not reflected on the DD Form 214. g. Performance Ratings: 10 June 2003 – 10 August 2006 / Best Qualified 11 August 2006 – 30 May 2008 / Best Qualified 31 May 2008 – 31 January 2011 / Best Qualified 1 February 2011 – 1 October 2011 / Best Qualified 10 October 2011 – 5 August 2012 / Do Not Promote 22 August 2012 – 21 August 2013 / Best Qualified h. Disciplinary Action(s) / Evidentiary Record: A Developmental Counseling Form for duties and responsibilities and ongoing inquiry. General Officer Memorandum Of Reprimand, 6 July 2012, reflects, on the night of 8 June 2012, the applicant fraternized with junior enlisted Soldiers on post by consuming an excess of alcohol, in violation of AR 600-20, paragraph 4-14b; invited an E-3 to the house and encouraged the Soldier to “party” with the applicant; demanded the Soldier and another unlicensed dependent to drive to the post to pick up the spouse; and on the night of 9 June 2012, the applicant slapped the spouse in the face in plain view of others. Army Substance Abuse Program (ASAP) Enrollment form, 25 June 2012, reflects the applicant was command-referred in the ASAP. No Contact Orders, 25 June 2012, ordered the applicant to not have any contact with B. B. or SPC N. L. A. Military Police Report, 5 October 2012, reflects the applicant was apprehended for: Communicating a threat (off post), Conduct unbecoming an officer (off-post); and Assault – consummated by a battery (off-post). General Officer Memorandum Of Reprimand, 30 October 2012, reflects the applicant’s behavior over the past five months demonstrated a concerning pattern of domestic violence issues: On 9 June 2012, the applicant threatened the spouse with physical violence in front of the children, by screaming to throw the spouse off a balcony; on 5 October 2012, the applicant physically abused the spouse by grabbing the neck and shoulders and shoving the spouse into a wall; after being released by the military police, the applicant was ordered to comply with a 72-hour cool down period, which the applicant violated by returning to the residence the following day. Proceedings of a Board of Inquiry as described in previous paragraph 3c (4). i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: VA Summary of Benefits letter, 15 August 2019, reflects the applicant had a combined service-connected evaluation of 100 percent disability. Mental Health Nurse Practitioner Note, 21 August 2019, reflects the active problems are Attention Deficit Hyperactivity Disorder combined and Chronic Post-Traumatic Stress Disorder. (2) AMHRR Listed: Report of Medical History, 27 February 2013, the applicant noted behavioral health issues and the examining medical physician did not comment on the noted issues. 5. APPLICANT-PROVIDED EVIDENCE: Two DD Forms 293 and DD Form 214. Additional Evidence: VA Summary of Benefits letter and Mental Health Nurse Practitioner Note. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has obtained civilian employment with the Department of the Army, renewed the Secret Security Clearance, and completed the MBA. 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 requests an upgrade to honorable. The applicant’s Army Military Human Resources Record (AMHRR), the issues/contentions raised, and documents submitted with the application were carefully reviewed. The applicant contends on three occasions, the BOI’s president disregarded the regulation, the witnesses’ testimonies were all hearsay and no proof the incidents occurred, the government’s counsel was excessive in ensuring the applicant obtained an unjust less than honorable discharge, and the separation proceedings were unjust and lacking impartiality. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends having served with distinction and had over 23 years of untainted service. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends the current discharge does not allow any recourse, including benefits to pass on to the children. Eligibility for veterans’ benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant contends being diagnosed with PTSD and ADHD by the VA and being treated by the VA for the conditions related to a 100 percent permanent disability rating. The applicant provided medical documents indicating diagnoses and treatment for PTSD and ADHD (with prescribed medication). The applicant’s AMHRR contains no documentation of the PTSD and ADHD diagnoses. The applicant contends having obtained civilian employment with the Department of the Army, renewed the Secret Security Clearance, and completed the MBA. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. 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, the applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially mitigating diagnoses/experiences: Adjustment Disorder, Generalized Anxiety Disorder, and Post Traumatic Stress Disorder (PTSD). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed in service with an Adjustment Disorder and Generalized Anxiety Disorder. The VA has also diagnosed and service connected the applicant with PTSD. Service connection establishes that the applicant's PTSD existed during military service. (3) Does the condition or experience excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the applicant’s behavioral health conditions do not mitigate the discharge. There is no natural sequela between an Adjustment Disorder, Generalized Anxiety Disorder, or PTSD and any of the misconduct that led to the applicant’s separation (inappropriate behavior with junior enlisted soldiers, domestic abuse, and making a false official statement). None of the diagnosed conditions interfere with the ability to distinguish between right and 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 Adjustment Disorder, Generalized Anxiety Disorder, or PTSD outweighed the applicant’s misconduct/basis of separation (inappropriate behavior with junior enlisted soldiers, domestic abuse, and making a false official statement). b. Response to Contention(s): (1) The applicant contends being diagnosed with PTSD and ADHD by the VA and being treated by the VA for the conditions related to a 100 percent permanent disability rating. The Board liberally considered this contention but determined that the available evidence did not support a conclusion that the applicant’s Adjustment Disorder, Generalized Anxiety Disorder, or PTSD outweighed the applicant’s misconduct/basis of separation (inappropriate behavior with junior enlisted soldiers, domestic abuse, and making a false official statement). Therefore, a discharge upgrade is not warranted. (2) The applicant contends on three occasions, the BOI’s president disregarded the regulation, the witnesses’ testimonies were all hearsay and no proof the incidents occurred, the government’s counsel was excessive in ensuring the applicant obtained an unjust less than honorable discharge, and the separation proceedings were unjust and lacking impartiality. The Board considered this contention but found no evidence in either the applicant’s AMHRR or applicant-provided evidence which would support the contention. Therefore, no upgrade is warranted. (3) The applicant contends having served with distinction and had over 23 years of untainted service. The Board considered the totality of the applicant’s record, including 24 years of service and multiple overseas and combat tours, but determined the applicant’s record does not outweigh the misconduct/basis of separation (inappropriate behavior with junior enlisted soldiers, domestic abuse, and making a false official statement). (4) The applicant contends the current discharge does not allow any recourse (including benefits) to pass on to the children. The Board considered this contention and determined that eligibility for Veteran's benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local Department of Veterans Affairs office for further assistance. (5) The applicant contends having obtained civilian employment with the Department of the Army, renewed a Secret Security Clearance, and completed an MBA. The Board considered the applicant’s post-service accomplishments but found that they do not outweigh the applicant’s offenses/basis of separation (inappropriate behavior with junior enlisted soldiers, domestic abuse, and making a false official statement). 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 to the evidentiary record. The applicant’s Adjustment Disorder, Generalized Anxiety Disorder, and PTSD do not outweigh the medically unmitigated offenses/basis of separation (inappropriate behavior with junior enlisted soldiers, domestic abuse, and making a false official statement). The Board also considered the applicant's contentions regarding improprieties in the discharge process, good service, and post-service accomplishments, but 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; 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 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 AR20210001767 1