1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general (under honorable conditions) The applicant, through counsel, requests an upgrade to honorable. The applicant seeks relief contending, in effect, the current characterization is inequitable. The applicant, through counsel, claim an upgrade in characterization, narrative reason for separation, and RE code is mandated due to the applicant's 4th amendment right to unlawful search and seizure and due process rights being violated, the lack of probable cause used to order a search warrant, and the lack of proper notification procedures in the applicant's administrative separation board. The applicant, through counsel, also contend that applicant was diagnosed with PTSD, which in addition to the applicant's family issues, may have mitigated the applicant's conduct leading to the discharge. In a records review conducted on 31 May 2022, and by a 3-2 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: Misconduct (Drug Abuse) / AR 635- 200, Chapter 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 3 January 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 18 June 2014 (2) Basis for Separation: The applicant was informed of the following reasons: On 16 October 2012, the applicant received a GOMOR from MG H. for being a married and engaging in an inappropriate personal and sexual relationship with the spouse of a Command Sergeant Major. On 4 April 2014, the applicant received an Article 15 for making a false official statement and the illegal use of Anabolic Steroids as shown by a positive urinalysis on 14 June 2013. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 20 June 2014 (5) Administrative Separation Board: On 26 August 2014, the applicant was notified to appear before an administrative separation board and advised of rights. On 16 September 2014, the administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant's discharge with characterization of service of general (under honorable conditions). On 20 November 2014, the separation authority approved the findings and recommendations of the administrative separation board. (6) Separation Decision Date / Characterization: 20 November 2014 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 March 2011 / Indefinite b. Age at Enlistment / Education / GT Score: 36 / Two years college / 117 c. Highest Grade Achieved / MOS / Total Service: E-7 / 25B40, IT Specialist / 17 years, 7 months, 12 days d. Prior Service / Characterizations: RA, 22 May 1997 - 24 May 1999 / HD RA, 25 May 1999 - 9 October 2001 / HD RA, 10 October 2001 - 5 December 2005 / HD RA, 6 December 2005 - 4 March 2011 / HD e. Overseas Service / Combat Service: Korea, Italy, SWA / Afghanistan (8 January 2007 - 10 March 2007; 7 September 2010 - 4 July 2011); Kuwait (18 February 1998 - 20 June 1998) f. Awards and Decorations: ACM-2CS, ARCOM-4, JSAM-2, AAM-3, MUC, VUA, AGCM-5, NDSM, KDSM, AFEM, GWOTSM, NCOPDR-3, ASR, OSR-3, NATOMDL-2 g. Performance Ratings: 16 December 2013 - 14 June 2014 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Military Protection Order, dated 29 May 2012, reflecting the A.C. as the protected person against the applicant. Military Protection Order, dated 29 May 2012, reflecting the A.C. as the protected person against the applicant. AR 15-6 Investigation Findings and Recommendations, dated 20 July 2012, reflect the following findings: the applicant having an inappropriate contact of a sexual nature with A.C. and allowing A.C. to engage in inappropriate sexual contact with the applicant, which is in violation of Article 134, UCMJ to include kissing and oral sex, having inappropriate communications with A.C.; the applicant having inappropriate communications with A.C. that were service discrediting or prejudicial to good order and discipline in violation of Article 134, UCMJ; the applicant and A.C. communicated sexually connotative messages and/or photos via email and Facebook social network accounts; it was the investigators belief, based on the preponderance of the evidence, that the applicant did have inappropriate contact of a sexual nature with A.C. Report of Proceedings by Investigating Officer/Board of Officers, dated 12 May 2014, reflects the investigating officer found: the allegation that on 4 April 2014 the applicant received an Article 15 for the illegal use of Anabolic Steroids as shown by a positive urinalysis on 14 June 2013, that on 4 April 2014 the applicant received an Article 15 for making a false statement, is supported by a preponderance of the evidence. The allegation the applicant engaged in an inappropriate personal and sexual relationship with the spouse of a Command Sergeant Major as it is shown by a General Officer Memorandum of Reprimand (GOMOR) issued by MG H. on 16 October 2012, is supported by a preponderance of the evidence. The findings did warrant the separation of the applicant. Military Protection Order, dated 14 June 2013, reflecting the L.R. as the protected person against the applicant. FG Article 15, dated 4 April 2014, for on 14 June 2013, with intent to deceive, make to CPT M.H. an official statement, to wit: "the medicine and the supplements were prescribed by the Zama Clinic," or words to that effect, which statement was false in that the applicant was not prescribed Anabolic Steroids by the Camp Zama Medical Clinic, and was then known by the applicant to be false. This is in violation of Article 107, UCMJ. The applicant, did on 14 June 2013, wrongfully use Anabolic Steroids a schedule III controlled substance. This is in violation of 112a, UCMJ. The punishment consisted of forfeiture of $2,100 pay; extra duty and restriction for 45 days; and written reprimand. Memorandum, Subject: Probable Cause to Search the Barracks of the applicant, dated 19 June 2013. General Officer Memorandum of Reprimand, dated 9 August 2012, from MG H. for being a married and engaging in an inappropriate personal and sexual relationship with the spouse of a Command Sergeant Major. The applicant's interactions with the spouse of the CSM involved exchanging text messages and photo messages of an explicit nature. During the affair, the applicant also engaged in oral sex with the CSM's spouse in a public place located on post. The entire situation was made all the more distressing by the fact both had young children. Memorandum of Reprimand filed in the applicant's Local Personnel File on 16 October 2012. Memorandum, dated 19 June 2013, Subject: Unsworn oral statement referencing steroids possession by Mrs. R. Memorandum, Subject: Commander's Information Report/Serious Incident Report, dated 14 June 2013, reflecting command-directed urinalysis. Electronic Copy of DD Form 2624, dated 27 August 2013, reflects the applicant tested positive for Steroids, during a Probable Cause (PO) urinalysis testing, conducted on 14 June 2013. Confidential Test Report, dated 31 July 2013, reflects a positive urinalysis finding for Anabolic Androgenic Steroids. CID Report, dated 28 October 2013, reflects the applicant was the subject in an investigation for wrongful use and possession of a controlled substance. CID Report, dated 1 November 2013, reflects the applicant was the subject in an investigation for wrongful use and possession of a controlled substance, and false official statement. Memorandum, Subject Reconsideration for applicant's administrative separation board recommendation, dated 13 November 2014, alleging errors in the applicant's administrative board process. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation (MSE), dated 15 April 2014, reflects a diagnosis of PTSD. The MSE further reflects the applicant could understand and participate in administrative proceedings, appreciate the difference between right and wrong, and the PTSD diagnosis did not meet AR 40-501 criteria for a medical evaluation board. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; counsel's legal brief; Commander's information report; Memorandum, Subject: Unsworn Oral Statement referencing steroids possession by Mrs. R.; Record of proceedings under Article 15; Separation Notification; Report of Proceedings by Investigating Officer/Board of Officers; and Separation Board transcript. 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 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (6) Paragraph 14-12c(2) terms abuse of illegal drugs as serious misconduct. It continues; however, by recognizing relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under paragraph 14- 12a or 14-12b as appropriate. 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 "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (drug abuse). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 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 narrative reason for the discharge needs to be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)," and the separation code is "JKK." 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 as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends family issues affected behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends good service, including combat tours. The Board considered the service accomplishments and the quality of service. The applicant desires to rejoin the Military Service. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, the applicant was appropriately assigned an RE code of "4." An RE code of "4" cannot be waived, and the applicant is no longer eligible for reenlistment. The applicant was diagnosed with PTSD, which may have affected the applicant's judgment, mitigating conduct leading to discharge. The MSE, dated 15 April 2014, reflects a diagnosis of PTSD. The MSE further reflects the applicant could understand and participate in administrative proceedings, appreciate the difference between right and wrong, and the PTSD diagnosis did not meet AR 40-501 criteria for a medical evaluation board. The MSE was considered by the separation authority. The applicant contends the command directed urinalysis test was not based on probable cause, and therefore a violation of the applicant's 4th amendment right protecting against unlawful search and seizure. Command ordered a urinalysis test after determining there was Probable Cause based on an unsworn oral statement - serving as independent evidence of applicant's drug use and possession. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the command's use of the positive urinalysis test was a violation of the Limited Use Policy. The urinalysis test was directed based on probable cause as reflected in the Urinalysis Test results, dated 27 August 2013, reflecting the basis for the test was PO (Probable Cause). Per AR 600-85, a urinalysis test conducted for probable cause is not Limited Use information. The AMHRR does not contain any evidence the applicant self-reported as defined by the Limited Use Policy. The applicant contends the government violated proper administrative notification procedures under AR 635-200, paragraph 2-4. The applicant was notified of the separation on 18 June 2014, and notified to appear before the separation board on 26 August 2014. 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. Applicant holds a PTSD diagnosis, which is potentially mitigating for misconduct related discharges. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found presence of PTSD diagnosis in-service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. It is the opinion of the Board's Medical Advisor that applicant's PTSD does not mitigate applicant's sexual relations with a SGM's spouse and making false statements because this misconduct is not part of the natural history or sequelae of applicant's PTSD. (4) Does the condition or experience outweigh the discharge? No. The Board, after applying liberal consideration, concurred with the Board's Medical Advisor, and concluded that the applicant's PTSD does not outweigh the unmitigated basis for applicant's separation. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention, but determined the discharge narrative reason was proper and equitable and no change is warranted. (2) The applicant contends family issues affected behavior and ultimately caused the discharge. The Board considered this contention, but determined that the Army has many legitimate avenues available to service members requesting assistance with family issues, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant making false official statements, adulterous behaviors, and abusing steroids are not acceptable responses to dealing with family issues, thus the applicant was properly and equitably discharged. (3) The applicant contends good service, including combat tours. The Board 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 making false official statements, adulterous behaviors, and abusing steroids, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation (4) The applicant desires to rejoin the Military Service. The Board considered this contention but denied the upgrade request, and therefore the applicant is not eligible for reenlistment. (5) The applicant was diagnosed with PTSD, which may have affected the applicant's judgment, mitigating conduct leading to discharge. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant's time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member's discharge characterization. In this case, the Board liberally considered applicant's PTSD, but determined that the applicant's misconduct resulting from poor decision making and the subsequent intentional attempted cover-up is not mitigated by applicant's PTSD. (6) The applicant contends the command directed urinalysis test was not based on probable cause, and therefore a violation of the applicant's 4th amendment right protecting against unlawful search and seizure. The Board considered this contention, but determined, through military legal counsel, that this contention does not warrant any change to the applicant's discharge. (7) The applicant contends the command's use of the positive urinalysis test was a violation of the Limited Use Policy. The Board considered this contention, but determined, through military legal counsel, that this contention does not warrant any change to the applicant's discharge. (8) The applicant contends the government violated proper administrative notification procedures under AR 635-200, paragraph 2-4. The Board considered this contention, but found the applicant was notified and appeared before a separation board 2 months after notification, and therefore does not warrant any change to the applicant's discharge. c. The majority of 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, the applicant's PTSD did not mitigate the offenses of making false official statements, adulterous behaviors, and abusing steroids, and the discharge was both proper and equitable. 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, as 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 AR20210002996 1