1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 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. The applicant seeks relief contending, in effect, the discharge was severe given the applicant’s distinguished service record. b. Board Type and Decision: In a records review conducted on 8 December 2022, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board’s decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Unacceptable Conduct / AR 600-8-24, Chapter 4-2b and 4-24a (1) / BNC / General (Under Honorable Conditions) b. Date of Discharge: 18 January 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 23 March 2016 (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 (5) and (8) for acts of personal misconduct and conduct unbecoming of an officer, due to the following reasons: Acts of personal misconduct documented in an AR 15-6 investigation and conduct unbecoming an officer as indicated by the above referenced AR 15-6 investigation. (3) Legal Consultation Date: 24 March 2016 (4) GOSCA Recommendation Date / Characterization: On 1 April 2016, the GOSCA recommended approval of the applicant’s request for resignation in lieu of elimination / General (Under Honorable Conditions) (5) DA Ad Hoc Review Board: The AD Hoc review board considered the applicant’s request for resignation in lieu of elimination in accordance with AR 600-8-24, Chapter 4. (6) Separation Decision Date / Characterization: 8 December 2016 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Appointment: 1 April 2002 / Indefinite b. Age at Appointment: / Education: 27 / Master’s Degree c. Highest Grade Achieved / MOS / Total Service: O-5 / 25A 3A, Signal, General / 20 years, 4 months, 21 days d. Prior Service / Characterizations: CDT, 27 August 1996 – 14 May 1999 / NIF USAR, 15 May 1999 – 22 May 1999 / NIF IADT, 23 May 1999 – 5 October 1999 / NIF RA, 6 October 1999 – 31 March 2002 / HD e. Overseas Service / Combat Service: Korea, SWA / Afghanistan (11 August 2008 – 20 November 2008); Djibouti (27 November 2008 – 27 December 2008); Iraq (1 March 2003 – 20 January 2004; 18 November 2005 – 19 November 2006; 4 September 2007 – 5 October 2007; 10 January 2008 – 11 April 2008); Qatar (25 August 2009 – 25 September 2010) f. Awards and Decorations: AFM-2CS, BSM-2, PH, DMSM, MSM, ARCOM-V-2, ARCOM- 2, AAM-6, JMUA, MUC, VUA, NDSM, GWOTEM, GWOTSM, KDSM, ICM-3CS, ASR, OSR-3, CAB g. Performance Ratings: 24 May 2002 – 31 December 2004 / Best Qualified 1 January 2005 – 31 July 2006 / Best Qualified 1 August 2006 – 27 April 2009 / Best Qualified 27 April 2009 – 10 June 2013 / Best Qualified 11 June 2013 – 31 December 2013 / Best Qualified 1 January 2014 – 14 September 2014 / Most Qualified 15 September 2014 – 1 May 2015 / Most Qualified h. Disciplinary Action(s) / Evidentiary Record: Charge Sheet, dated 18 February 2016, reflects the applicant was charged with: Charge I: violation of the UCMJ, Article 92. Specification 1: The applicant did on divers occasions, between on or about 5 June 2015 and on or about 22 December 2015, fail to obey a lawful general regulation by wrongfully engaging in a dating and sexual relationship with 2LT M. C., a subordinate officer under the applicant’s command. Specification 2: The applicant did on divers occasions, between on or about 5 June 2015 and on or about 18 December 2015, fail to obey a lawful general regulation, by repeatedly visiting bars and private residences with subordinate lieutenants and repeatedly consuming alcohol with subordinate lieutenants. Charge II: violation of the UCMJ, Article 134. The Specification: The applicant did on divers occasions, between on or about 1 October 2015 and on or about 20 December 2015, wrongfully have sexual intercourse with 2LT M. C, a person not the spouse, such conduct being to the prejudice of good order and discipline in the armed forces. Charge III: violation of the UCMJ, Article 90. Specification 1: The applicant having received a lawful command on 22 December 2015 from COL A. P. R., to initiate no contact or communication with 2LT M. C., or words to the effect, did, on divers occasions, between on or about 23 December 2015 and on or about 7 January 2016, willfully disobey the same by sending 2LT M. C. text messages and electronic mail and leaving 2LT M. C. letters and gifts. Specification 2: The applicant having received a lawful command on 22 December 2015 from COL A. P. R., to remain at least 50 feet away from 2LT M. C. and the residence, or words, to the effect, on or about 5 January 2016 willfully disobey the same. Charge IV: violation of the UCMJ, Article 128. The Specification: The applicant did on or about 11 December 2015, unlawfully grab 2LT M. C’s scarf and push 2LT M. C. with hands against an elevator wall. Charge V: violation of the UCMJ, Article 107. The Specification: The applicant did on or about 23 December 2015, with intent to deceive, make to COL J. M. S. official statements to which the applicant knew to be so false. Pre-Trial Offer & Agreement, 17 March 2016, reflects the applicant agreed to plead guilty to all charges and specifications as alleged in the charges preferred against the applicant on 18 February 2016 at a General Officer Article 15 proceeding. GO Article 15, dated 24 March 2016, for: On divers occasions, between on or about 5 June 2015 and on or about 22 December 2015, fail to obey a lawful general regulation by wrongfully engaging in a dating and sexual relationship with 2LT M. C., a subordinate officer under the applicant’s command; On or about 5 June 2015 and on or about 18 December 2015, fail to obey a lawful general regulation, by repeatedly visiting bars and private residences with subordinate lieutenants and repeatedly consuming alcohol with subordinate lieutenants; The applicant, a married person, on divers occasions between on or about 1 October 2015 and on or about 20 December 2015, wrongfully had sexual intercourse with 2LT M. C., a person not the spouse, such conduct being prejudice of good order and disciple in the armed forces; On 22 December 2015, the applicant receiving a lawful command from COL A. P. R., to initiate no contact or communication with 2LT M. C., on divers occasions, between on or about 23 December 2015 and on or about 7 January 216, willfully disobey the same by sending 2LT M. C. text messages and electronic mail and leaving letters and gifts; On 22 December 2015, the applicant receiving a lawful command from COL A. P. R., to remain at least 50 feet away from 2LT M. C. and the residence, willfully disobeyed the same on or about 5 January 2016; On or about 11 December 2015, the applicant unlawfully grabbled 2LT M. C.’s scarf and pushed 2LT M. C. with hands against an elevator wall; and, On or about 23 December 2015, with intent to deceive, made to COL J. M. S. official statements, which statements were false and were then known by the applicant to be so false. i. Lost Time / Mode of Return: None j. Applicant Provided and/or AMHHR Listed PTSD / TBI / Other Behavioral Health Conditions: Report of Medical History, dated 4 April 2001, the examining medical physician noted in the comments section: Depression after 1st tour, loss a friend. Counseling at Fort Gordon initially, then kept with chaplain. Nightmares of events, etc. Recent suicidal ideations went to behavior health continue with chaplain. Report of Mental Status Evaluation, dated 27 April 2016, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with: Adjustment disorder with depressed mood. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; listed exhibits 1 through 8. 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: Submit a resignation in lieu of elimination; request a discharge in lieu of elimination; and, Apply for retirement in lieu of elimination if otherwise eligible. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “BNC” as the appropriate code to assign commissioned officers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4-2b, unacceptable conduct; and, 4-24a (1), resignation in lieu of elimination. 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 good service, including seven combat tours. The Board considered the service accomplishments and the quality of service. The applicant contends the discharge was severe given the applicant’s distinguished service record. The applicant submitted 19 Officer Evaluation Reports and 19 award certificates which reflect the applicant’s outstanding duty performance. The Army Military Human Resource Record (AMHRR), reflects the applicant, in consultation with legal counsel, voluntarily requested, in writing, a discharge under the provisions of AR 600-8-24, Chapter 4, in lieu of further elimination proceedings. In this request, the applicant indicated an understanding an under other than honorable conditions discharge could be received, and the discharge would have a significant effect on eligibility for veterans’ benefits. The general (under honorable conditions) received by the applicant was normal and appropriate under the regulatory guidance. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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, Depression. (2) Did the condition exist or experience occur during military service? Yes. The Board’s Medical Advisor found that the applicant’s Adjustment Disorder and Depression existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that there is no natural sequela between Depression or an Adjustment Disorder and any of the misconduct that led to applicant’s separation to include inappropriate relationships with subordinates and making false official statements given that neither condition interferes with one’s ability to distinguish between right and wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board considered the opinion of the Board’s Medical Advisor, a voting member, and determined that the available evidence did not support a conclusion that the applicant’s Adjustment Disorder and Depression outweighed the basis for applicant’s separation – adultery, sexual relationship with a 2LT in the applicant’s chain of command, violating no contact order, and false official statements – for the aforementioned reasons. b. Response to Contention: The applicant contends good service, including seven combat tours, and given the applicant’s service record the discharge was too severe. The Board considered the totality of the applicant’s service record, but determined 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 engaging in adultery, a sexual relationship with a 2LT in the applicant’s chain of command, violating a no contact order, and making false official statements, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. Further, the applicant did not provide any evidence of arbitrary or capricious action taken by the separation authority to provide merit to the assertion of the discharge being too severe. After liberally considering the weight of the evidence, the Board determined the discharge was 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, despite applying liberal consideration of all the evidence before the Board, the applicant’s Adjustment Disorder and Depression diagnoses did not excuse or mitigate the basis for applicant’s separation – adultery, sexual relationship with a 2LT in the applicant’s chain of command, violating no contact order, and false official statements. 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 AR20210002359 1