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 discharge be reviewed and corrected to alleviate an inequitable outcome. The applicant is not seeking to change the separation authority or the narrative reason for separation on the grounds of propriety. The applicant acknowledges the events leading to the discharge occurred just as they did, and the separation was completed in accordance with procedure. The applicant is asking the Board to recognize the applicant's punishment. For the applicant to continue to live under the shadow of this character of service is unfair, vindictive, and inequitable. Counsel further details the contentions in an allied legal brief provided with the application. In a records review conducted on 5 May 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 / General (Under Honorable Conditions) b. Date of Discharge: 12 July 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 29 September 2015 (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, moral, or professional dereliction, conduct unbecoming of an officer and for receiving adverse information filed in the Army Military Human Resource Record in accordance with AR 600-37, due to the following reasons: Misconduct or moral or professional dereliction which the applicant participated in an inappropriate relationship. Substantiated derogatory activity resulting in a General Officer Article 15, dated 17 September 2015, for failing to obey a lawful general regulation which was filed in the applicant's Army Military Human Resource Record. Substantiated derogatory activity resulting in a General Officer Article 15, dated 17 September 2015, for making a false official statement which was filed in the applicant's Army Military Human Resource Record. Substantiated derogatory activity resulting in a General Officer Article 15, dated 17 September 2015, for wrongfully having sexual intercourse with a married man not the applicant's husband which was filed in the applicant's Army Military Human Resource Record. Conduct unbecoming an officer as indicated by the above referenced items. (3) Legal Consultation Date: On 12 November 2015, the applicant consulted with legal counsel and request a discharge from the Army in lieu of further elimination proceedings contingent upon receiving an honorable discharge. (4) GOSCA Recommendation Date / Characterization: On 10 December 2015, the GOSCA recommended disapproval of the applicant's request for discharge in lieu of elimination and recommend the applicant be involuntarily eliminated from service. / General (Under Honorable Conditions). (5) DA Board of Review for Eliminations: On 28 June 2016, the Army Board of Review for Eliminations disapproved the applicant's conditional request for discharge in Lieu of elimination and directed the applicant's discharge with a General (Under Honorable Conditions). (6) Separation Decision Date / Characterization: 28 June 2016 / The DASA Review Boards disapproved the applicant's conditional discharge in lieu of elimination and directed the applicant's discharge with a General (Under Honorable Conditions) characterization of service. 4. SERVICE DETAILS: a. Date / Period of Appointment: 28 May 2014 / Indefinite b. Age at Appointment: / Education: 22 / Bachelor's Degree c. Highest Grade Achieved / MOS / Total Service: O-1 / 12A 2B 3Y, Engineer, General / 2 years, 1 month, 15 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM, NDSM, GWOTSM, ASR g. Performance Ratings: 28 May 2014 - 21 May 2015 / Highly Qualified 22 May 2015 - 18 September 2015 / Not Qualified 19 September 2015 - 12 July 2016 / Highly Qualified h. Disciplinary Action(s) / Evidentiary Record: AR 15-6 Investigation Findings dated 11 August 2015, reflects the applicant violated UCMJ: Article 80, Attempts; Article 81, Conspiracy; Article 133, Conduct Unbecoming of an Officer and a Gentleman; Article 134 Obstructing Justice and Article 125 Sodomy. GO Article 15, dated 17 September 2015, for failing to obey a lawful general regulation on divers occasions by wrongfully having an intimate relationship with a junior enlisted Soldier (between 1 June and 4 August 2014); On or about 7 August 2015 with intent to deceive made a false statement to CPT O.; and on divers occasions (between 20 July 2015 and 4 August 2015) have sexual intercourse with SPC H., a married man not the applicant's husband. The punishment consisted of a written reprimand. General Officer Memorandum of Reprimand, for violating a lawful general regulation, giving a false official statement, and having sexual intercourse with a man not the applicant's husband. Between on or about 1 June 2015 and on or about 4 August 2015, the applicant had an intimate relationship with a junior enlisted Soldier. Additionally, on 7 August 2015, the applicant signed a sworn statement stating the applicant and the junior enlisted Soldier did not do anything of a sexual nature, which statement was false. Furthermore, between on or about 20 July 2015 and on or about 4 August 2015, the applicant's relationship with the junior enlisted Soldier turned into a sexual relationship. The applicant's conduct was unbecoming of a commissioned officer and would not be tolerated in the U.S. Army. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 23 October 2015, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with: Adjustment disorder with mixed anxiety and depressed mood. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with legal brief and all listed exhibits. 6. POST SERVICE ACCOMPLISHMENTS: The applicant was hired as an entry level contract position with Tech Marine Business. Based on the strength of the applicant's academic record, the applicant was hired for the current position as a Program Engineering Analyst. 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 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 investigation leading to the discharge was bias and continuing to live under the shadow of this character of service is unfair, vindictive, and inequitable. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. The applicant contends good service. The Board considered the service accomplishments and the quality of service. The applicant contends being hired as a Program Engineering Analyst. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The third party statements provided with the application speak highly of the applicant. They all recognize the applicant's good performance while serving in the Army. 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 with an Adjustment Disorder in service that could mitigate the basis for applicant's separation. (2) Did the condition exist or experience occur during military service? Yes. The Board arrived at this finding based upon the applicant being diagnosed in-service with an Adjustment Disorder. (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, after applying liberal consideration, opined that the Adjustment Disorder was diagnosed after the misconduct in direct response to applicant's difficulties adjusting to her pending separation and divorce. Therefore, the Board's Medical Advisor concluded that applicant's Adjustment Disorder does not mitigate applicant's 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 any of the applicant's medical conditions outweighed the medically unmitigated basis for applicant's separation. b. Response to Contention(s): (1) The applicant contends the investigation leading to the discharge was bias and to continue to live under the shadow of this character of service is unfair, vindictive, and inequitable. The Board considered this contention and the applicant's assertion of bias investigation leading to the discharge, however the Board determined that the weight of the evidence does not support this contention and did not warrant any change to applicant's discharge. (2) The applicant's counsel contends that a discharge separation with a general discharge characterization is too harsh as compared to the UCMJ specification of adultery outside of the military. The Board considered this contention but concluded that the U.S. Army holds all soldiers to a higher standard and the discharge is both proper and equitable for applicant's wrongful conduct. (3) The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. (4) The applicant contends good service. 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 personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By having an inappropriate relationship, failing to obey a lawful general regulation, making a false official statement, wrongfully having sexual intercourse with a married man not the applicant's husband, and conduct unbecoming an officer, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. c. The Board determined 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 Adjustment Disorder did not outweigh the medically unmitigated offenses of having an inappropriate relationship, failing to obey a lawful general regulation, making a false official statement, wrongfully having sexual intercourse with a married man not the applicant's husband, having an inappropriate relationship with a junior enlisted Soldier, and conduct unbecoming an officer, 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 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 AR20210003097 1