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, the discharge should be upgraded based on good moral character. The applicant requests the decision be made after reviewing the recommendation letters submitted with the application. b. Board Type and Decision: In a records review conducted on 30 May 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: 25 August 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 11 March 2011 (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, and derogatory information. On or about 6 February 2009, the applicant intentionally exposed their penis in an indecent manner by sending photos and videos via e-mail of oneself masturbating. Between on or about 6 January 2009 and on or about 31 December 2009, the applicant engaged in inappropriate relationships with three people, not the spouse. On 10 February 2011, the applicant received non- judicial punishment for this misconduct. On 10 February 2011, a General Officer Memorandum of Reprimand was filed in the applicant’s Official Military Personnel File for having inappropriate relationships with at least 17 people while the applicant was still married to spouse. Legal Consultation Date: 15 March 2011 (3) Board of Inquiry (BOI): NA (4) GOSCA Recommendation Date / Characterization: On 14 April 2011, the GOSCA recommended approval of the applicant’s request for resignation in lieu of elimination be approved and be separated from the U.S. Army with a general (under honorable conditions) characterization of service. (5) DA Board of Review for Eliminations: On 28 June 2011, 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. (6) Separation Decision Date / Characterization: 25 July 2011 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Appointment: 30 May 1998 / NIF b. Age at Appointment: / Education: 22 / Bachelor’s Degree c. Highest Grade Achieved / MOS / Total Service: O-4 / 11A 5W, Infantry / 13 Years, 2 Months, 26 Days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (11 April 2003 – 10 September 2003; 6 June 2010 – 4 September 2010); Qatar (18 December 2001 – 2 August 2002); Iraq (18 February 2008 – 17 February 2009) f. Awards and Decorations: ACM-CS, BSM, MSM-3, ARCOM-4, AAM-2, NDSM-2, AFEM, GWOTSM, GWOTEM, HSM, ICM-2CS, ASR, OSR g. Performance Ratings: 1 October 1999 – 27 July 2001 / Best Qualified 28 July 2007 – 15 October 2003 / Best Qualified 16 October 2003 – 19 April 2005 / Best Qualified 20 April 2005 – 1 May 2008 / Best Qualified 2 May 2008 – 16 February 2009 / Best Qualified 17 February 2009 – 14 June 2011 / Fully Qualified h. Disciplinary Action(s) / Evidentiary Record: Informal AR 15-6 Investigation Findings and Recommendations, dated 13 July 2010, reflect the investigation officer found there was enough evidence to prove the applicant had established inappropriate relationships with other people while married. Although the applicant was legally separated in November 2008, the applicant was still legally married to the spouse until the divorce is finalized. Since 2004, there had been evidence of email correspondences with at least 17 other people. Many of these correspondences demonstrate the applicant’s attempt to establish some type of relationship. The investigator received a packet from the MAJ W., which contained a sworn statement from the applicant’s spouse, references to the applicant’s history, numerous emails between the applicant and other people, and a CD which contained videos of the applicant talking to other people and masturbating. The applicant denies having actual sexual contact or intercourse with any other person; however, the applicant did state there were about five to six different people with whom the applicant did have an emotional or virtual affair via the internet. During this time, the applicant used at least three private email accounts to correspond with these people. The applicant virtually met many of these people using an internet site called Yahoo 360. Many of the email correspondences suggest an inappropriate relationship between the applicant and these people. The investigating officer recommended, due to the applicant’s continued use of internet connections and relationship sites and the inability to keep relationships confined to spouse. The investigator recommends the chain of command require the applicant to receive additional counseling regarding internet and pornography addiction and work with Military One Source. Not be allowed to assume duties as a Battalion Operations or Executive Officer and received a General Officer Memorandum of Reprimand. General Officer Memorandum Of Reprimand, dated 6 January 2011 reflects the applicant was reprimanded for having an inappropriate relationship with at least 17 people while still married to spouse. There is also evidence of at least three of these relationships were adulterous. Additionally, while deployed to Iraq, the applicant created at least four videos of oneself masturbating and emailed them to people not the applicant’s spouse. In three of the videos, the applicant was wearing the Army Physical Fitness uniform. The applicant engaged in these acts while married and knowing several of the people the applicant was communicating with were also married. FG Article 15, dated 10 February 2011, on or about 6 February 2009, on divers’ occasions intentionally expose penis in an indecent manner by sending photos and videos via email of oneself masturbating while the photos and videos could be reasonability viewed by people other than the applicant’s family. On or about 6 January 2009 and on or about 12 October 2009, engaged in conduct unbecoming an officer and a gentleman to wit: engaged in an inappropriate relationship with H.; between on or about 6 January 2009 and 31 December 2009, with PFC G., and L., The punishment consisted of a forfeiture of $3,270 pay per month for two months (suspended). 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; North Carolina Criminal Record Search document; three letters of support. 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 requests an upgrade to honorable. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends discharge should be upgraded based on good moral character. The AMHRR indicates the applicant committed many discrediting offenses. In pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The third-party statements provided with the application speak highly of the applicant. They all recognize the applicant’s good conduct while in the Army. 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/experiences: PTSD. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant is service connected for PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a diagnosis of PTSD established through VA service connection. This condition offers no medical mitigation for the offenses leading to his discharge; PTSD does not impair one’s ability to differentiate right from wrong and adhere to the right, and there is no nexus between PTSD and indecent exposure, or inappropriate relationships of the nature described in applicant’s records and ultimately contributory to discharge. (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 conditions outweighed the basis for applicant’s separation – list offenses – for the aforementioned reason(s). (1) Response to Contention(s): The applicant contends the discharge should be upgraded based on good moral character. The Board considered this contention and determined the applicant’s post-service accomplishments of now having good moral character does not outweigh the applicant’s indecent acts by sending pictures and videos of applicant masturbating via email basis for separation. b. 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. c. 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 PTSD did not excuse or mitigate the offenses of indecent acts by sending pictures and videos of applicant masturbating via email. The Board also considered the applicant's contention regarding applicant’s good moral character and found that 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. (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 AR20210001933 1