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 honorable. The applicant requests a narrative reason change. The applicant seeks relief contending, in effect, being found guilty in a non-judicial proceeding of violating Article 120 of the Uniform Code of Military Justice (UCMJ). The Commander decided, pursuant to the UCMJ Article 15 Part V, the punishment should be a Letter of Reprimand, an authorized punishment under the UCMJ. The applicant received a written reprimand, and no other punishment was imposed. The narrative reason for discharge was “unacceptable conduct,” is incorrect, because an Article 15 separation is not an authorized punishment. The narrative reason for discharge should read, “Expiration – Term of Service (ETS),” since in block 18 indicates, “Member has completed first full term of service/nothing follows,” and since only a board of inquiry can make a finding for separation for misconduct. The board of inquiry did not find misconduct. The narrative reason currently in box 28 does not support any records on file. b. Board Type and Decision: In a records review conducted on 28 July 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 / JNC / NA / Honorable b. Date of Discharge: 1 June 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 July 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 for misconduct because of the following reasons: A United States Army Criminal Investigation Command investigation revealed the applicant repetitively made unwelcome advances, kisses, and inappropriate touching upon a fellow Soldier classmate after the Soldier repeatedly requested the applicant to stop. On 23 May 2016, the applicant received a General Officer Memorandum of Reprimand (GOMOR) for misconduct. The GOMOR was filed in the applicant Army Military Human Resource Record (AMHRR) on 11 July 2016. (3) Board of Inquiry (BOI): NIF (4) GOSCA Recommendation Date / Characterization: On 30 January 2017, the GOSCA recommended disapproval of the applicant’s request for retention and recommend the applicant be involuntarily eliminated from service / Honorable. (5) DA Board of Review for Eliminations: The Army Board of Review for Eliminations considered the GOSCA’s request to involuntary separate the applicant for misconduct in accordance with AR 600-8-24, Chapter 4-2b. (6) Separation Decision Date / Characterization: 16 May 2017 / Honorable 4. SERVICE DETAILS: a. Date / Period of Appointment: 10 December 2015 / 3 years (Obligation Volunteer Officer) b. Age at Appointment: / Education: 23 / Bachelor’s Degree c. Highest Grade Achieved / MOS / Total Service: O-1 / 42B, Human Resources Officer / 2 years, 13 days d. Prior Service / Characterizations: RA, 19 May 2015 – 9 December 2015 / HD e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Law Enforcement Report – Initial - Final, dated 29 April 2016, reflects an investigation the Trial Counsel, Office of the Staff Judge Advocate (OSJA), opined probable cause exists to believe the applicant committed the offense of Abusive Sexual Contact. The applicant declined to make a statement and requested legal counsel. General Officer Memorandum of Reprimand, dated 23 May 2016, reflects the applicant made unwelcome advances, involving kisses and inappropriate touching upon a fellow classmate, also engaged in the harassment of other classmates involved similar behavior. Report of Mental Status Evaluation, dated 13 December 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. Commander’s Report of Disciplinary or Administrative Action, dated 7 April 2017, reflects an investigation established the applicant committed the offense of Abusive Sexual Contact. The summary of pleas and findings: On 21 July 2016, guilty, consistent with the finding. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Chronological Record of Medical Care, dated 4 October 2016, reflects the applicant had a provisional diagnosis of: adjustment disorder with depressed mood. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; CID Law Enforcement Report. 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 “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 a narrative reason change. The applicant’s record of service, the issues and documents submitted with the application were carefully reviewed. 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 honorable 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. The applicant contends the discharge was unjust because the misconduct was not found by the Board of Inquiry. The applicant was found guilty in a non-judicial proceeding of violating Article 120, UCMJ, and the command determined the punishment would be an official GOMOR, and nothing in the applicant’s record indicated additional punishment was authorized. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant’s issue regarding the non-judicial proceeding of violating Article 120, UCMJ does not fall within this board’s purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans’ Service Organization 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 and Adjustment Disorder. (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 is diagnosed and service connected by the VA for PTSD. Service connection establishes that applicant's PTSD 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 neither PTSD or an Adjustment Disorder are associated with perpetrating sexual harassment, and there is no evidence that applicant’s PTSD or Adjustment Disorder contributed to the applicant’s repetitively unwelcome advances, kisses, and inappropriate touching upon a fellow Soldier classmate after the Soldier repeatedly requested the applicant to stop basis for separation. (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, that the available evidence did not support a conclusion that the applicant’s PTSD and Adjustment Disorder outweighed the basis for applicant’s separation – applicant repetitively made unwelcome advances, kisses, and inappropriate touching upon a fellow Soldier classmate after the Soldier repeatedly requested the applicant to stop basis for separation. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention and determined the narrative reason is appropriate as the applicant’s repetitively unwelcome advances, kisses, and inappropriate touching upon a fellow Soldier classmate after the Soldier repeatedly requested the applicant to stop basis for separation is not mitigated or excused by applicant’s PTSD or Adjustment Disorder. (2) The applicant contends the discharge was unjust because the misconduct was not found by the Board of Inquiry. The Board considered this contention and determined there is no evidence of the Command acting in an arbitrary or capricious manner, ultimately, there is insufficient evidence to support this contention. The applicant was properly and equitably discharged. 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 characterization of service due to it already being Honorable. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code as the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as there was no RE-code listed on the applicant’s discharge paperwork, due to being an Officer, no upgrade action is 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 AR20210002691 1