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: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant entered the service at Fort Sill, in 1997, as a Private First Class and was awarded the military occupational specialty (MOS) 14T, Patriot Missile Crewmember. The applicant completed a 30-day deployment in Saudi Arabia and in 2000, changed the MOS to 52E, Power Station Electrician. The applicant was assigned to Fort Lewis, and graduated the Basic NCO Course. The applicant participated in various emergency power and disaster relief missions in support of FEMA and the U.S. Corps of Engineers and served on two deployments, OEF in Kyrgyzstan and OIF in Iraq. After the Hurricane Jeanne disaster relief mission, the applicant was assigned to Schofield Barracks and was accepted on first review to Warrant Officer Candidate School (WOCS) and was assigned to Fort Knox. The applicant graduated from the WOCS and took the oath of office in December 2005 and graduated the Warrant Officer Basic Course at Fort Leonard Wood, in April 2006. In 2007, the applicant deployed to Iraq, describing highlights of the deployment. The applicant received various awards and decorations for over a decade of honorable service and believes it to be a mischaracterization to label the service as other than honorable. The reason for the characterization of the discharge was within days of the graduation WOCS in December 2005, the applicant's wife of almost 10 years confessed to an illicit affair with the wife's co-worker for almost the entire time the applicant was away for training at Fort Rucker. The applicant and spouse divorced and the three sons lived with the wife and new boyfriend in Kentucky. Prior to the deployment the wife alleged the applicant communicated a threat of domestic violence. The applicant responded to the wife's unreasonable request for financial settlement, stating, "You are killing me and the worst part of it is the kids have to watch me die." The wife reported to the unit claiming the applicant threatened to kill the wife. Several months into the deployment, the oldest son became distant and refused to take the applicant's calls. The applicant's ex-wife made various allegations against the applicant of inappropriateness with the children, in order to gain full custody. The final blow came when the ex-wife's allegations led to a formal investigation by CID. The ultimate result was a general court-martial at which the applicant was forced to decide to either testify against the applicant's own son or allow the panel to determine the fate based on what the applicant's attorney categorized as "very flimsy" evidence. Unfortunately, the attorney was a civilian lawyer who had never defended a client in a military court and was unprepared to defend the applicant. The decision to not allow the applicant to testify proved to be a mistake and the applicant was sentenced to confinement with no reduction in grade or recommendation for discharge from the panel. In the ten years since these events, the applicant has no contact with the children; the children names have been changed; and every Father's Day is excruciating. In a records review conducted on 28 April 2022, and by a 5 - 0 vote, the Board denied the request upon finding the separation was both proper and equitable. However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, block 26, contained an erroneous entry. The Board directed the following administrative correction and reissue of the applicant's DD Form 214, as approved by the separation authority: block 26, separation code changed to BNC. 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, Paragraph 4-2B / JNC / Under Other Than Honorable Conditions b. Date of Discharge: 27 October 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 6 July 2011 (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), (8), (15) and 4-2c(2) for misconduct and derogatory information, due to the following reasons: The applicant was convicted by a court-martial which did not impose a punitive discharge. Specifically, the applicant did: Between 31 July 2004 and 8 October 2005, persuade or entice a male under the age of 16, to film himself masturbating. Between 31 July 2004 and 8 October 2005, knowingly possess on the applicant's personal computer a video of a male under the age of 16, masturbating. (3) Legal Consultation Date: 22 August 2011 / The applicant unconditionally waived the right to appear before a board of officers and tendered a Resignation in Lieu of Elimination. (4) GOSCA Recommendation Date / Characterization: On 8 September 2011, the GOSCA recommended approval of the applicant's request for Resignation in Lieu of Elimination / Under Other Than Honorable Conditions (5) DA Board of Review for Eliminations: On 7 October 2011, the Department of the Army Ad Hoc Review Board considered the Resignation in Lieu of Elimination. (6) Separation Decision Date / Characterization: 7 October 2011 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Appointment: 7 December 2005 / 6 years b. Age at Appointment: / Education: 37 / 2 Years College c. Highest Grade Achieved / MOS / Total Service: WO1 / 120A0, Construction Engineer Technician / 14 years, 8 months, 3 days d. Prior Service / Characterizations: RA, 12 February 1997 - 6 July 1999 / HD RA, 7 July 1999 - 14 November 2002 / HD RA, 15 November 2002 - 6 December 2005 / HD e. Overseas Service / Combat Service: Hawaii, SWA / Iraq (24 September 2003 - 6 May 2004; 11 December 2006 - 11 November 2007); Kyrgyzstan (3 February 2002 - 31 October 2002) f. Awards and Decorations: ARCOM-5, AAM, AFAM, AGCM-2, NDSM, AFEM, ASR, GWOTEM, GWOTSM, ICM-2CS, NCOPDR g. Performance Ratings: 14 April 2006 - 13 April 2007 / Best Qualified 13 April 2007 - 7 February 2008 / Best Qualified 8 February 2008 - 21 May 2008 / Do Not Promote h. Disciplinary Action(s) / Evidentiary Record: General Court-Martial Order Number 217, dated 25 September 2008, reflects on 21 May 2008, the applicant was found guilty in violation of Article 134, UCMJ: Specification 1: Did between 31 July 2004 and 8 October 2005, persuade or entice T.Y., a male under the age of 16 to film themselves masturbating, which conduct was to prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. Plea: Not Guilty. Specification 2: Did, between 31 July 2004 and 8 October 2005, knowingly possess on the personal computer a video of T.Y., a male under the age of 16, masturbating, which conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. Plea: Not Guilty. The sentence adjudged was confinement for 24 months. On 25 September 2008, the sentence was approved and order executed. The automatic forfeiture of all pay and allowances as required by Article 58b(a)(1), UCMJ, was waived for a period of six months with direction the forfeitures be paid to Mrs. B.D. to support the applicant's children. The automatic forfeitures of all pay and allowances were deferred effective 5 June 2008 until this date. Two Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Confined by Military Authorities (CMA)," effective date 21 May 2008; and, From "Confined by Military Authorities" to "Present for Duty," effective date 18 October 2009. Memorandum, dated 7 September 2011, reflects on 10 June 2010, the Army Court of Criminal Appeals (ACCA) affirmed the findings of guilty and approved the sentence in the court-martial case. On 10 November 2010, the Court of Criminal Appeal of the Armed Forces (CAAF) denied the applicant's appeal. i. Lost Time / Mode of Return: 14 days (CMA, 21 May 2008 - 3 June 2008) / Released from Confinement / CMA for 1 year, 4 months, 15 days; 4 June 2008 - 18 October 2009. This period is not annotated on the DD Form 214, block 29. j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD 149; DD Form 214; DD Form 293; self-authored statement. 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) Paragraph 1-23c, states a discharge under other than honorable conditions is an administrative separation from the service. A discharge certificate will not be issued. An officer will normally receive an under other than honorable conditions when he or she: Resigns for the good of the Service; is dropped from the rolls (DFR) of the Army in accordance with paragraph 5-9; (3) is involuntarily separated due to misconduct, moral or professional dereliction, or for the final revocation of a security clearance under DODI 5200.02 and AR 380-67 as a result of an act or acts of misconduct, including misconduct for which punishment was imposed; and, is discharged following conviction by civilian authorities. (5) Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty. (6) Paragraph 4-2b, prescribes for the elimination of an officer for misconduct, moral or professional dereliction, or in the interests of national security. (7) 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, paragraph 4-2b and 4-24a(1), unacceptable conduct. The SPD code identifies resignation or voluntary discharge in lieu of elimination proceedings. 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. Based on the AMHRR, someone in the discharge process erroneously entered on the applicant's DD Form 214, block 25, AR 600-8-24, PARA," and block 26, "JNC." The discharge packet confirms the separation authority approved the applicant's Resignation in Lieu of Elimination under AR 600-8-24, paragraph 4-2b, based on misconduct and moral or professional dereliction and paragraph 4-2c, derogatory information. Officers processed for misconduct under these provisions will be assigned the Authority of AR 600-8-24, PARA 4-2b and PARA 4-24a(1) and an SPD code of "BNC." The applicant contends family issues and false allegations made by the ex-wife, led to the discharge. The applicant was convicted by general court-martial, but did not receive a punitive discharge and the sentence of guilty was approved by ACCA. The GOSCA initiated administrative separation and the applicant voluntarily requested Resignation in Lieu of Elimination, which was approved by the separation authority with an under other than honorable conditions. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service, including three combat tours. The Board considered the service accomplishments and the quality of service. 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 was diagnosed in service with Major Depression that may mitigate the basis for separation. (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 Major Depression. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor determined that the medical condition does not mitigate the basis of separation. The Board's Medical Advisor opined that while liberal consideration was applied, applicant's Major Depression does not mitigate the basis for separation given no natural sequela between depression and child sexual abuse. There was no association between applicant's Major Depression and the misconduct that led to his 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 applicant's Major Depression outweighed the medically unmitigated basis for applicant's separation for persuading or enticing a male under the age of 16, to film himself masturbating and knowingly possessing on the applicant's personal computer a video of a male under the age of 16, masturbating. b. Response to Contentions: (1) The applicant contends family issues and false allegations made by the ex-wife, led to the discharge. The Board considered this contention, but concluded no change to applicant's discharge is warranted. Regarding family issues, the Board 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 during applicant's ilitary service. The applicant was convicted by general court-martial, but did not receive a punitive discharge and the sentence of guilty was approved by ACCA. The GOSCA initiated administrative separation and the applicant voluntarily requested Resignation in Lieu of Elimination, which was approved by the separation authority with an under other than honorable conditions. (2) The applicant contends good service, including three combat tours. The Board considered this contention, 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 persuading or enticing a male under the age of 16, to film himself masturbating and knowingly possessing on the applicant's personal computer a video of a male under the age of 16, masturbating, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. 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 contentions 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 Major Depression diagnosis did not outweigh the medically unmitigated offenses of persuading or enticing a male under the age of 16, to film himself masturbating and knowingly possessing on the applicant's personal computer a video of a male under the age of 16, masturbating. 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 to change the applicant's reason for discharge because, although the Board found the discharge proper and equitable and there were no BH diagnoses which mitigated the misconduct to warrant relief, it was found that there was an administrative error on the applicant's DD Form 214, thus making the current reason for discharge improper. The corrected reason for discharge will be Unacceptable Conduct. The SPD code associated with the new reason for discharge is BNC. (3) As there is no RE-code listed on the applicant's discharge paperwork, no upgrade actions are required for this item. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: No Change c. Change Reason / SPD code to: Unacceptable Conduct / BNC 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 AR20210003077 1