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 general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, pursuant to the 25 August 2017 memorandum on discharge relief for veterans suffering from PTSD. The applicant claims applicant was diagnosed with PTSD in 2007, while serving as an Army Judge Advocate at Fort Leonard. The applicant claims applicant is currently rated at 70 percent for PTSD by the Department of Veterans Affairs. The applicant claims documentary evidence shows the medication and the PTSD treatment the applicant was receiving were the major contributing causes for the misconduct which led to the applicant current discharge. The applicant claims previous performance evaluations would show the conduct was not indicative of the way the applicant served during operations in Libya in April 1986; Operation Desert Shield aboard USS Dwight D. Eisenhower (CVN-69) in 1990; and Operation Enduring Freedom in 2005. The applicant claims those evaluations were throughout the applicant's military service, while participating in real world conflicts. The applicant claims the evaluations prove for over twenty-two years, the applicant consistently received high evaluations and recommendations for promotions. The applicant contends PTSD and medication prescribed, inherently affected the applicant's behavior and decision-making. The applicant claims Psychiatrist at Fort Leonard Wood who treated the applicant, stated in the Medical Evaluation Board Report, dated 20 August 2008, the applicant's PTSD appeared to have developed in earlier deployments, and during an Eye Movement Desensitization Reprocessing (EMDR) session and after being prescribed Xanax by a primary care doctor, the applicant became suicidal and was admitted to ward 4C for safety purposes. The applicant claims despite having been diagnosed with PTSD, being suicidal, and being committed to a psychiatric unit, the applicant was found fit for duty and discharged. The applicant states an upgrade and a change to the narrative reason for separation to "Condition not a disability" are reasonable, due to the circumstances. In a records review conducted on 12 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: 17 December 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 12 February 2008 (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) for misconduct, moral, or professional dereliction, conduct unbecoming of an officer, due to the following reasons: The applicant received an Article 15 on 5 February 2008. The applicant was sentenced to be reprimanded and to forfeit one-half month's pay per month for two months (the last month suspended for 180 days). The specific factual allegations and evidence used for that Article 15 are the basis for the commander's initiation of the applicant's elimination: a. Knowing of the applicant's duties, on or about 28 September 2007, the applicant was derelict in the performance of those duties in willfully having sex with Mrs. B., who was at the time the applicant's legal assistance client. b. At or near Fort Leonard Wood, Missouri, on or about 30 October 2007, with intent to deceive, the applicant did make to LTC L., an official statement, to wit: "The applicant did not have sex with Mrs. B., nor did the applicant have any other inappropriate relationship with Mrs. B., the applicant did meet Mrs. B., briefly on the evening of the 28th in the parking lot of a gas station near the hotel the applicant was staying at with the applicant's spouse and friends," or words to effect, which statement was false the applicant did have sex with Mrs. B., have an inappropriate relationship with Mrs. B., share a hotel room with Mrs. B., on 28 September 2007, and was not sharing a room with the applicant's spouse and friends on this evening. c. The applicant a married, did, at or near Eldon, Missouri, on or about 28 September 2007, wrongfully have sexual intercourse with Mrs. B., a married woman not the applicant's spouse. (3) Legal Consultation Date: 7 and 10 March 2008. The applicant submitted a resignation in lieu of elimination and understands if its accepted the applicant will be furnished an honorable or general (under honorable conditions discharge). On 18 March 2008, the applicant rescinded the request upon the advice of the applicant's Trial Defense Counsel. (4) Board of Inquiry Date / Recommendation: On 23 June 2008, a board of inquiry recommended The applicant be eliminated from the Army based on miscount and moral or professional dereliction, and conduct unbecoming an officer with a general (under honorable conditions) characterization. (5) GOSCA Recommendation Date / Characterization: On 28 March 2008, the GOSCA recommended the applicant eliminated from the U.S. Army with a general (under honorable conditions). (6) DA Board of Review for Eliminations: On 21 November 2008, the Army Board of Review for Eliminations considered the GOSCA's request to involuntary separate the applicant for substandard performance in accordance with AR 600-8-24, Chapter 4-2a. (7) Separation Decision Date / Characterization: 21 November 2008 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Appointment: 22 October 2006 / for a period of 174 days and with an active duty commitment ending 10 May 2010. b. Age at Appointment: / Education: 40 / Juris Degree c. Highest Grade Achieved / MOS / Total Service: O-3 / 27A, Judge Advocate General / 23 years, 5 months, 28 days d. Prior Service / Characterizations: DEP, 29 February 1984 - 22 July 1984 / NA USN, 23 July 1984 - 22 April 1988 / HD USNR, 23 April 1988 - 20 September 1988 / NA USN, 21 September 1988 - 20 September 1990 / HD USNR, 21 September 1988 - 14 April 1991 / NA ARNG, 15 April 1991 - 1 September 1993 / GD USARCP, 2 September 1993 - 27 February 1995 / NA USAR, 28 February 1995 - 30 September 1996 / NA ARNG, 1 October 1996 - 9 March 1997 / HD USARCP, 10 March 1997 - 30 September 2002 / NA (Break in Service) ARNG, 28 May 2003 - 4 December 2004 / HD ARNG, 5 December 2004 - 16 December 2005 / NA AD, 17 December 2005 - 31 May 2006 / HD ARNG, 1 June 2006 - 21 October 2006 / HD e. Overseas Service / Combat Service: SWA / Kuwait (NIF), Afghanistan (2 January 2006 - 2 May 2006 f. Awards and Decorations: ARCOM, JMUA, NUC, NMUC, SWASM, ACM, GWOTSM, NCOPDR, ASR, AFRM-M, NSSDR, USN/USMS EXP, KLM (SA), NDSM-2, MUC, SSDR-2, NEM, KLM (K) g. Performance Ratings: 1 February 2007 - 29 September 2007 / Best Qualified h. Disciplinary Action(s) / Evidentiary Record: GO Article 15, dated 5 February 2008, on or about 28 September 2007, willfully have sex with Mrs. B., who at the time was the applicant's legal assistance; wrongfully have sexual intercourse with Mrs. B., a married woman not the applicant's spouse. On or about 30 October 2007, the applicant with intent to deceive make an official statement to LTC L., an official statement which was false and then known to be false by the applicant. The punishment consisted of a forfeiture of $2857 pay per month for two months (suspended for one month). General Officer Memorandum of Reprimanded, dated 12 February 2008, the applicant is reprimanded for having an adulterous relationship and being derelict in the performance of duties in which the applicant had this adulterous relationship with the applicant's legal assistance client. The applicant, was also reprimanded for making a false official statement in which the applicant stated not having sex or an inappropriate relationship and the applicant only met Mrs. B., briefly on the evening of 28 September 2007 in the parking lot of a gas station near a hotel where the applicant was staying at with the applicant's spouse and friends. In fact, by the applicant's own admission during the Article 15 hearing, the applicant was not staying in a hotel room with spouse and friends. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided Exhibit F Medical Evaluation Board, dated 20 August 2008, which reflects Axis I: Posttraumatic stress disorder, chronic, as manifested by multiple traumatic experiences where horror and helplessness were the responses. These were combat-related experiences. Physical Evaluation Board (PEB), dated 30 September 2008, finds the applicant physically fit and the deposition is return to duty. VA Progress notes, dated 6 April 2009, page 269, reflects the applicant was diagnosed with Axis I: Chronic PTSD, MDD, REC, MOD ETOH abuse. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; with Exhibits A, B, C, D, E, F and VA medical records. 6. POST SERVICE ACCOMPLISHMENTS: None provided 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 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 4, paragraph 4-2b, AR 600-8-24 with a general (under honorable conditions) 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 being diagnosed with PTSD. The applicant's AMHRR contains documentation which supports a diagnosis of in-service PTSD. A Medical Evaluation Board (MEB), dated 20 August 2008, reflects Axis I: Posttraumatic stress disorder, chronic, as manifested by multiple traumatic experiences where horror and helplessness were the responses. These were combat-related experiences. A Physical Evaluation Board (PEB), dated 30 September 2008, finds the applicant physically fit and the deposition is return to duty. The MEB and PEB were considered by the separation authority. The applicant contends despite having been diagnosed with PTSD, being suicidal, and being committed to a psychiatric unit, the applicant was found fit for duty and discharged. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service, including a combat tour. 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 and found applicant was diagnosed in service with Major Depressive Disorder and PTSD that may mitigate the discharge. (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 Depressive Disorder and PTSD for which he is also service connected by the VA. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor, after applying liberal consideration, opined that the applicant's Major Depressive Disorder and PTSD do not mitigate the basis of separation. There is no association between either of these BH conditions and adultery, an inappropriate sexual relationship with a client, and making a false official statement given. Further, neither condition interferes with one's ability to differentiate between right and wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. The Board, after applying liberal consideration, concurred with the Board's Medical Advisor that the applicant's BH conditions do not outweigh the unmitigated adultery and making false official statements that were the basis for applicant's separation. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs to be changed. The Board voted not to change the applicant's reason for discharge because, the discharge is proper and equitable and there were no BH diagnoses which mitigated the misconduct to warrant relief. (2) The applicant contends being diagnosed with PTSD, suicidal ideation and admission to a psychiatric unit, yet the applicant was found fit for duty and discharged. The Board liberally considered this contention and found the applicant's Major Depressive Disorder and PTSD, suicidal thoughts, and subsequent determination that applicant was fit for duty do not mitigate the applicant's basis for separation, nor warrant any change to applicant's discharge for inequity or impropriety. (3) The applicant contends good service, including a combat tour. 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 dereliction of duty, inappropriate relationship and making a false official statement, 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 Major Depressive Disorder and PTSD did not outweigh the unmitigated offenses of dereliction of duty, inappropriate relationship and making a false official statement, 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 AR20210003258 1