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 applicant was diagnosed with chronic post- traumatic stress disorder with depressed mood and prescribed medication. b. Board Type and Decision: In a records review conducted on 26 January 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 July 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 June 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, chapter 4-2a(1), a(3), a(6), b(1), b(2), b(5) and c(5), due to for substandard performance of duty, misconduct, and moral and professional dereliction, and derogatory information filed in the OMPF. Sexually harassed two NCOs. Fraternized with enlisted members. Disobeyed a lawful order not to drive on a suspended and/or expired license. Failed to meet personal financial obligations including but not limited to the rent. Work performance has been poor. Improperly conducted personal business for extensive period on the phone in violation of AR 25- 1, Chapter 6-1e. Failed to report for duty for the entire day of 7 February 2012. Received a referred OER on 28 October 2011. Received an OMPF filed GOMOR for misconduct, on 1 June 2012. Security clearance has been suspended. (3) Legal Consultation Date: On 19 July 2012, the applicant requested to resign from the Army in lieu of elimination and requested an honorable discharge. The applicant’s chain of command recommended the request be disapproved. On 8 August 2012, the applicant voluntarily tendered a resignation from the Army under the provisions of AR 600-8-24, chapter 4, in lieu of further elimination proceedings and requested no less than a general (under honorable conditions) discharge. The applicant’s chain of command recommended the request be disapproved. On 30 November 2012, the Department of the Army Ad Hoc Review Board reviewed the resignation in lieu of elimination tendered by the applicant. The Deputy Assistant Secretary (DASA), did not accept the resignation conditioned upon receiving no worse than a general discharge. The DASA directed the case be returned the Commanding Officer, Headquarters, Fort George G. Meade. In accordance with Army Regulation 600-8-24, paragraphs 4-20(i)(3) and 4-24(g), the DASA directed a Board of Inquiry authorized to recommend an under other than honorable conditions characterization of service be conducted, unless the applicant tenders an unconditional Resignation in Lieu of Elimination. (4) Board of Inquiry (BOI): On 10 January 2013, the applicant was notified to appear before a Field Officer Board of Inquiry and advised of rights. On 22 February 2013, a formal BOI was held to make findings and recommendations for charges brought forth against the applicant. The Board concluded and signed a findings and recommendations worksheet. The applicant’s counsel immediately objected to the findings and recommendations worksheet, arguing it did not match the 18 June 2012 charge sheet and was thus not proper. The objection was noted in the record and the board members all signed the findings and recommendations worksheet without any changes. On 1 March 2013, after review of the issue raised by the applicant’s counsel, the Recorder requested the board reconvene to consider a findings and recommendations worksheet which matched the 18 June 2012 charge sheet. The applicant’s counsel objected to this request, arguing the board cannot revise the findings once the board is closed. On 11 April 2013, the applicant was notified again to appear before a Field Officer Board of Inquiry on 24 April 2013. On 24 April 2013, the BOI findings dated 22 February 2013, pertaining to the applicant were set aside by the Board president, with the approval of General Officer Show Cause Authority (GOSCA), because the form of the findings did not conform with the notice provided to the applicant. Pursuant to AR 600-8-24 the GOSCA approved reopening the board to deliberate and make new findings and recommendations which conform with the notice provided. On 24 April 2013, the Board reconvened. The applicant appeared with counsel. The Board recommended the applicant be discharged with a general (under honorable conditions). (5) GOSCA Recommendation Date / Characterization: On 16 May 2013, the GOSCA recommended approval of the findings of the Board and recommended the applicant be separated from the Army prior to the expiration of the current term of service under the provisions of AR 600-8-24, Chapter 4-2a, b, and c. / General (Under Honorable Conditions) (6) DA Board of Review for Eliminations: On 1 July 2013, the Army Board of Review for Eliminations considered the GOSCA’s request to involuntary separate the applicant for misconduct and moral or professional dereliction, derogatory information, and substandard performance of duty, with a general (under honorable conditions) characterization of service. (7) Separation Decision Date / Characterization: 8 July 2013 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Appointment: 1 November 2011 / 724 days b. Age at Appointment: / Education: 40 / NIF c. Highest Grade Achieved / MOS / Total Service: O-2 / 92A QM, General / 11 years, 5 months, 4 days d. Prior Service / Characterizations: USAR, 21 February 2002 – 1 November 2004 / NIF RA, 2 November 2004 – 31 August 2007 / HD (Concurrent Service) ARNG, 27 June 2007 – 31 August 2009 / HD USAR, 1 September 2009 – 31 October 2011 / NIF e. Overseas Service / Combat Service: SWA / Iraq (15 October 2005 – 4 October 2006) f. Awards and Decorations: ARCOM-2, MUC, AGCM, NDSM, GWOTSM, ICM-CS, NCOPDR, ASR, OSR g. Performance Ratings: 1 November 2011 – 22 June 2012 / Do Not Promote h. Disciplinary Action(s) / Evidentiary Record: General Officer Memorandum of Reprimand, illegible date, reflects between 13 and 16 December 2011, the applicant repeatedly harassed an NCO by calling numerous times, leaving numerous voicemails, and making inappropriate sexual advances. Also on 27 February 2012, the applicant made unwanted physical contact with another NCO by touching the hair and massaging the shoulders. Such conduct constitutes fraternization in violation of Army Regulation 600-20, Paragraph 4-14 and the Uniform Code of Military Justice. Also on 8 December 2011, the applicant drove the vehicle with a suspended driver’s license though the applicant had been ordered not to do so by the company commander. Driving on a suspended license not only demonstrated a dangerous lack of judgment, it violated a lawful order, which is a violation of the Uniform Code of Military Justice. In addition, from December 2011 to February 2012, the applicant failed to pay rent. The applicant failed to make the agreed upon payments toward the debt, thus violating the Uniform code of Military Justice. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of Licensed Psychologist Memorandum, dated 25 January 2012, which reflects the applicant was diagnosed with post-traumatic stress disorder chronic and prescribed medication. Report of Mental Status Evaluation, dated 4 April 2012, reflects the applicant was 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. The applicant had been screened for PTSD with negative results and mTBI with positive results. The doctor provided handwritten notes about the mTBI. The applicant was diagnosed with adjustment disorder with mixed disturbance of emotions and conduct, and partner relational problems. The applicant provided a copy of Health Record, dated 1 February 2013, which reflects the applicant was diagnosed with chronic post-traumatic stress disorder and adjustment disorder with depressed mood. The applicant provided a copy of VA document, dated 17 January 2017, which reflects the applicant was granted 30 percent service-connected disability for major depressive disorder. 5. APPLICANT-PROVIDED EVIDENCE: Online application; signature page; health record; NGB Form 22; two DD Forms 214; VA document. 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 record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends being diagnosed with chronic post-traumatic stress disorder with depressed mood and prescribed medication. The applicant’s Army Military Human Resource Record (AMHRR) contains documentation which supports a diagnosis of in-service post- traumatic stress disorder. Report of Mental Status Evaluation, dated 4 April 2012, reflects the applicant was 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. The applicant had been screened for PTSD with negative results and mTBI with positive results. The doctor provided handwritten notes about the mTBI. The applicant was diagnosed with adjustment disorder with mixed disturbance of emotions and conduct, and partner relational problems. The MSE was considered by the separation authority. The applicant provided a copy of Licensed Psychologist Memorandum, dated 25 January 2012, which reflects the applicant was diagnosed with post-traumatic stress disorder chronic and prescribed medication. The applicant provided a copy of Health Record, dated 1 February 2013, which reflects the applicant was diagnosed with chronic post-traumatic stress disorder and adjustment disorder with depressed mood. 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 general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Unacceptable Conduct,” and the separation code is “JNC.” Army Regulation 635-8, Separation Processing and Documents, governs preparation of the DD Form 214 and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 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: Adjustment Disorder, PTSD, Depression. (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, PTSD, and Depression. The VA has also service connected the Depression. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined that the applicant was diagnosed in service with an Adjustment Disorder, PTSD, and Depression. The VA has also service connected the Depression. Applicant’s BH conditions provide partial medical mitigation. Given the nexus between PTSD and avoidance, applicant’s PTSD may have contributed to the FTR. However, there is no natural sequela between any of applicant’s BH conditions and any of the other misconduct that led to separation to include sexual harassment, fraternization, disobeying a lawful order not to drive on a suspended and/or expired license, failing to meet personal financial obligations, and improperly conducted personal business on the phone. (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 while there is medical mitigation for the applicant’s FTR misconduct, the available evidence did not support a conclusion that the applicant’s Adjustment Disorder, PTSD, and Depression outweighed the remaining medically unmitigated basis for applicant’s separation – sexual harassment, fraternization, disobeying an order, driving on an expired license, and failure to meet financial obligations and improperly conducting personal business for extensive period on the phone – for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends being diagnosed with chronic post-traumatic stress disorder with depressed mood and prescribed medication. The Board considered this contention and determined that while there is medical mitigation for the applicant’s FTR misconduct, the available evidence did not support a conclusion that the applicant’s Adjustment Disorder, PTSD, and Depression outweighed the remaining medically unmitigated basis for applicant’s separation – sexual harassment, fraternization, disobeying an order, driving on an expired license, and failure to meet financial obligations and improperly conducting personal business for extensive period on the phone. Thus, the discharge is proper and equitable. (2) The applicant contends the narrative reason for the discharge needs changed. The Board considerd this conteniton and the totality of the evidence and determined there were insufficient mitigating factors such that would warrant an upgrade of the applicant’s discharge. Thus, the narrative reason for separation is proper and equitable. 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, while there is medical mitigation for the applicant’s FTR misconduct, the available evidence did not support a conclusion that the applicant’s Adjustment Disorder, PTSD, and Depression outweighed the remaining medically unmitigated basis for applicant’s separation – sexual harassment, fraternization, disobeying an order, driving on an expired license, and failure to meet financial obligations and improperly conducting personal business for extensive period on the phone. 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 GD was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to HD. (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) As there is no RE-code listed on the applicant’s discharge paperwork due to service as an Officer, no upgrade actions are required for this item. 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 AR20210002357 1