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 accusations of fraternization and misconduct unbecoming of an officer are all related to the applicant marrying the spouse, who was enlisted. The applicant had no direct official capacity over the spouse while in the military. They had no marital commitments during the relationship. b. Board Type and Decision: In a records review conducted on 2 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: In Lieu of Trial by Court-Martial / AR 600-8-24, Chapter 3-13 / DFS / General (Under Honorable Conditions) b. Date of Discharge: 29 July 2016 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 28 August 2015, the applicant was charged with: Charge I: Violating Article 90, UCMJ. The Specification: Having received a lawful command from CPT S. R. W., to refrain from any physical or verbal contact with SPC C. R. D., or words to that effect, did on or about 27 July 2015 and on or about 30 July 2015, willfully disobey the same. Charge II: Violating Article 133, UCMJ. The Specification: On or about 1 April 2015 and on or about 30 April 2015, the applicant wrongfully and dishonorably engaged in oral sex with SPC C. R. D., to wit: performing oral sex on SPC C. R. D., in the back seat of Z. F.’s. vehicle, while Z. F. was driving, such act constituting conduct unbecoming an officer. Charge III: Violating Article 134, UCMJ. The Specification: On or about 1 April 2015 and on or about 30 July 2015, knowingly fraternize with SPC C. R. D., an enlisted person, on terms of military equality, to wit: engaging in sexual activity with SPC C. R. D., in violation of the custom of the United States Army which officers shall not fraternize with enlisted persons on terms of military equality, and said conduct was to the prejudice of good order and disciple in the armed forces and was of a nature to bring discredit upon the armed forces. (2) Legal Consultation Date: 14 September 2015 (3) Basis for Separation: Pursuant to applicant’s request for Resignation, In Lieu of Trial by Court-Martial, under the provisions of Chapter 3, AR 600-8-24. (4) Separation Decision Date / Characterization: 12 July 2016 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Appointment: 8 June 2009 / Indefinite b. Age at Appointment: / Education: 25 / Medical Doctor c. Highest Grade Achieved / MOS / Total Service: O-4 / 61R, Diagnostic Radiologist / 7 years, 1 month, 23 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM, NDSM, GWOTSM, ASR g. Performance Ratings: 1 July 2009 – 28 June 2012 / Best Qualified 28 June 2012 – 28 June 2013 / Best Qualified 28 June 2013 – 27 June 2014 / NIF 28 June 2014 – 29 June 2015 / Highly Qualified 30 June 2015 – 10 August 2015 / Not Qualified 11 August 2015 – 29 July 2016 / Qualified h. Disciplinary Action(s) / Evidentiary Record: Report of Proceedings by Investigating Officer, dated 10 August 2015, reflects the investigating officer found: The applicant did engage in an inappropriate relationship with SSG H. C. and the applicant did engage in an inappropriate relationship with Soldiers in the Radiology Department. Charge sheet as described in previous paragraph 3c. Report of Mental Status Evaluation, dated 21 September 2015, 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 and mTBI.results. The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. The command was advised to consider the influence of these conditions. It was noted, this 32-year old, major and radiologist, has been a patient for a significant period (21 August thru 16 October, for six individual therapy sessions). The applicant has given consent authorizing the provider to provide the following MSE report. Overall, and throughout the treatment the applicant has been cooperative, responsible, and generally forthright in the involvement with the provider. Although the applicant has shown some understandable signs of stress (tension, infrequent tearfulness, and sometimes anger), the applicant has remained psychologically stable, with no indications of gross impulsiveness, suicidal preoccupations, signs of psychosis or psychological decompensation. The applicant is fully capable of understanding the current situation, consulting with counsel, and making rational and thoughtful decisions. The applicant does not suffer from any psychological or psychiatric conditions which warrants a referral for an MEB. The applicant is fully competent to handle any administrative or legal matter which is pending in this matter. The applicant is fully fit for duty in regards to the practice of medicine from a behavioral health perspective. Several Developmental Counseling Forms, for conduct unbecoming of an Officer by violating no contact order and fraternization; allegations of an inappropriate relationship and removal of a flag. i. Lost Time / Mode of Return: None j. Applicant Provided and/or AMHHR Listed PTSD / TBI / Other Behavioral Health Conditions: Report of Medical Examination, dated 19 October 2015, the examining medical physician noted in the comments section: Anxiety/depression. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149. 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. (4) Chapter 3, prescribes the rules for processing voluntary resignations. Except as provided in paragraph 3-1b, any officer of the RA or USAR may tender a resignation under the provisions of this chapter. SECARMY (or designee) may accept resignations and orders will be issued by direction of the CG, HRC. An officer whose resignation has been accepted will be separated on the date specified in DA’s orders or as otherwise directed by the DA. An appropriate discharge certificate as specified by the CG, HRC, will be furnished by the appropriate commander at the time the officer is separated. The date of separation, as specified or directed, will not be changed without prior approval of HQDA nor can valid separation orders be revoked subsequent to the specified or directed date of separation. (5) Paragraph 3-9 (previously 3-13), outlines the rules for processing requests for resignation for the good of the Service in lieu of trial by a general court-martial. (6) Paragraph 3-9i, states an officer separated under this paragraph normally receives characterization of service of under other than honorable conditions. 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 “DFS” as the appropriate code to assign Officers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 3-13, in lieu of trial by court-martial. 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 the accusations of fraternization and misconduct unbecoming of an officer are all related to the applicant marrying the spouse, who was enlisted. The applicant had no direct official capacity over the spouse while in the military. On 23 October 2015, pursuant to the applicant’s request for resignation under the provisions of AR 600-8-24, Chapter 3, para 3-13, in lieu of trial by court-martial. The applicant understood the applicant may request discharge in lieu of trial by court-martial because of the following charges which have been preferred against the applicant under the Uniform Code of Military Justice, one of which or a combination of which authorizes the imposition of a bad conduct or dishonorable discharge: Article 90 – Disobeying a lawful command, Article 133 – Conduct unbecoming an officer and gentleperson, and Article 134 – Fraternize with enlisted persons. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention. The Army Military Human Resource Record (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: Generalized Anxiety Disorder (GAD). (2) Did the condition exist or experience occur during military service? Yes. The Board’s Medical Advisor found that the applicant’s GAD 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 Anxiety and any of the misconduct that led to applicant’s separation, and as such there is no medical mitigation. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board concurred with 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 GAD outweighed the basis for applicant’s separation – violation of a no contact order and engaging in sexual activity with a SPC. b. Response to Contention(s): The applicant contends the accusations of fraternization and misconduct unbecoming of an officer are all related to the applicant marrying the spouse, who was enlisted. The applicant had no direct official capacity over the spouse while in the military. The Board considered this contention and found it non-persuasive during proceedings as the applicant requested to resign under the provisions of AR 600-8-24, Chapter 3, para 3-13, in lieu of trial by court-martial following, and the applicant did not provide supporting evidence to provide merit to the assertion. Ultimately, the Board determined there is no evidence of any arbitrary or capricious actions taken by the separation authority and the discharge 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, despite applying liberal consideration of all the evidence, the Board determined that the applicant’s GAD did not outweigh the basis for applicant’s separation – violation of a no contact order and engaging in sexual activity with a SPC. 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 AR20210002361 1