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 under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, at the time of his discharge, the applicant was suffering from serious medical conditions such as chronic lower back pain and PTSD. He struggles with his PTSD on a daily basis. He receives psychological treatment at Mindful Behavioral Healthcare in Kissimmee, Florida for his PTSD, anxiety, depression, and bipolar disorder. His PTSD was the root cause of his misconduct which ultimately led to his other than honorable discharge from the Army. He wants to receive the medical services he needs and has not received from the VA. He served honorable for more than seven years with two combat deployments. Had his chain of command identified his PTSD as a mitigating factor in his misconduct, he would not have received an other than honorable discharge. He has taken great strides to prove to his family, friends, and community he is an upstanding civilian and dedicated family man. His discharge is punitive in nature, it stigmatizes the applicant's reputation and impedes his ability to gain employment. He now seeks to reclaim his lost honor so he can once again speak of his Army service with pride without the lingering sense of shame which tainted his years of honorable service. The applicant is seeking to correct his characterization of service, narrative reason for separation, and separation code. In a records review conducted on 2 December 2021, and by a 3 - 2 vote, the Board determined the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge (i.e. in- service diagnosis of PTSD). Accordingly, the Board voted to grant relief in the form of a partial upgrade to the characterization of service to General, Under Honorable Conditions. The Board determined the narrative reason/SPD code were proper and equitable and voted not to change them. Please see Section 9 of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Unacceptable Conduct / AR 600-8-24, Chapter 4-2B / JNC / NA / Under Other Than Honorable Conditions b. Date of Discharge: 6 October 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 April 2009 (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 his Army Military Human Resource Record in accordance with AR 600-37, due to the following reasons: Disobeying an order from a superior officer, dereliction of duty, making two false statements on 20 October and 10 November 2008 and Inappropriate relationship with the wife of a deployed Soldier between 1 June and 1 December 2008. Conduct unbecoming an officer, AR 600-8-24 para 4-2b, specifically his conduct from 20 October, 9 November and 10 November 2008 which is detailed above. Substantiated derogatory information filed in his Army Military Human Resource Record (AMHRR), namely the Article 15 dated 20 April 2009 and GOMOR, not dated, that was permanently filed in his OMPF, AR 600-37 para 3-4b. (3) Legal Consultation Date: 26 June 2009, he voluntarily waived consideration of his case by a Board of Inquiry contingent upon him receiving a characterization of service no less favorable than a general (under honorable conditions). The GCMSCA disapproved the conditional waiver request and directed a Board of Inquiry. (4) GOSCA Recommendation Date / Characterization: On 1 July 2009, the GOSCA recommended disapproval of the applicant's request for retention and recommend that he be involuntarily eliminated from service / Under Other Than Honorable Conditions. (5) DA Board of Review for Eliminations: On15 September 2009, 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. (6) Separation Decision Date / Characterization: 17 September 2009 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Appointment: 27 August 2002 / 3 years / Additional Active Duty Service Obligation / 14 September 2007 / 3 years b. Age at Appointment: / Education: 27 / Bachelor's Degree c. Highest Grade Achieved / MOS / Total Service: O-3 / 88A Transportation / 8 years, 1 month, 10 days / block 12e on the applicant's DD Form 214 is incorrect and should reflect 1 year, 6 months, 19 days to account for ROTC service. d. Prior Service / Characterizations: USACG (ROTC), 8 February 2001 - 23 August / NA USAR, 24 August 2002 - 6 August 2002 / NA e. Overseas Service / Combat Service: Germany / SWA, Iraq (13 June 2003 - 4 February 2004) (23 January 2006 - 25 March 2007) f. Awards and Decorations: BSM, ARCOM, NDSM, GWOTEM, ICM-CS, GWOTSM, ASR, OSR-3, NATO MDL, CAB, JMUA g. Performance Ratings: 1 January 2006 - 1 March 2008 / Best Qualified 2 March 2008 - 2 April 2009, Unsatisfactory Performance h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 20 April 2009, for wrongfully and willfully engage in a notorious relationship (between 1 June and 10 November 2008). On or about 9 November failed to be at his appointed place of duty. On or about 20 October and 10 November 2008, made a false statement. The punishment consisted of, forfeiture of $2,000 pay per month for two months and, written reprimand. General Officer Memorandum of Reprimand, dated 1 April 2009 reflects the applicant conduct was unbecoming of an officer, violating a lawful order, dereliction of duty, and lying to his superior officers. He openly engaged in an inappropriate relationship with the spouse of a Soldier who was deployed to Afghanistan. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Physical Profile reflects the applicant had the following medical conditions: Chronic low back pain and PTSD which needs further evaluation. Mindful Behavioral Healthcare document, dated 14 September 2017, shows the applicant was diagnosed with PTSD, unspecified, bipolar II disorder and generalized anxiety disorder. He was prescribed medications for these conditions. Mindful Behavioral Healthcare document, dated 14 September 2017, 5 December 2017 and 18 January 2018, respectively relates the applicant was diagnosed with PTSD, chronic, bipolar disorder, current episode mixed, moderate, generalized anxiety disorder and insomnia, unspecified. He was prescribed medications for these conditions. 5. APPLICANT-PROVIDED EVIDENCE: D Form 293 (two pages); attorney's brief (seven pages); Exhibit 1, DD Form 214; Exhibit 2, Enlisted Record Brief; Exhibit 3, GO Article 15 (two pages); Exhibit 4, GO Article 15 appeal; Exhibit 5, GO Punitive GOMOR; Exhibit 6, Notification of permanent profile, Physical Profile; Exhibit 7, Medical Evaluation Board Proceedings (two pages); Medical Board Summary; Exhibit 8, Physical Evaluation Board Proceedings (three ages); Exhibit 9, discharge orders 162-0001 (three pages); Exhibits 10-11, Officer Elimination Case; Exhibit 12, Physical Profile; Exhibit 13, Family Physicians of Kissimmee handwritten document; Exhibit 14, Mindful Behavioral Healthcare documents (16 pages); Exhibit 15, Officer Evaluation Reports (20 pages); four support / character statements; GO Article 15 (two pages); GO Punitive GOMOR; Memorandum for Record, date of signature; GO Article 15 appeal; and Exhibit 16, three support / character statements. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with 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 4-24a 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: (1) Submit a resignation in lieu of elimination; (2) 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. DISCUSSION 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 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 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends the SPD code should be changed. SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations. The SPD code specified by Army Regulations for a discharge under Chapter 4, paragraph 4-2b, is "JNC." The applicant contends suffering from chronic low back pain and PTSD. The applicant's AMHRR contains documentation that supports a diagnosis of in-service lower back pain and PTSD. The record does not reflect he received further evaluation of his PTSD while on active duty. The applicant contends he struggles with PTSD on a daily basis. The applicant provided several medical documents from Mindful Behavioral Healthcare indicating he was diagnosed with PTSD, anxiety, depression and bipolar disorder. The applicant contends his PTSD was the root cause of his misconduct and if his chain of command had identified his PTSD as a mitigating factor in his misconduct, he would not have received an other than honorable discharge. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends he would like to receive the medical services he needs and has not received from the VA. Eligibility for veteran's benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant contends good service, including two combat tours. The Board considered the service accomplishments and the quality of service. The applicant contends, his discharge is punitive in nature, it stigmatizes the applicant's reputation and impedes his ability to gain employment. The Board does not grant relief to gain employment or enhance employment opportunities. The third party statements provided with the application speak highly of the applicant. 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 and the applicant was diagnosed with combat-related PTSD that may excuse or mitigate the applicant's basis for separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the evidence in the electronic military medical record that the applicant was diagnosed with PTSD during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor opined the association between PTSD and difficulty with authority, as well as avoidance actually mitigates disobeying an order and dereliction of duty. However, making false official statements and an inappropriate relationship are not commonly associated with PTSD and the evidence in this case does not support any mitigation of those basis for separation. (4) Does the condition or experience outweigh the discharge? Partially. The Board, after applying liberal consideration to the evidence concurred with the opinion of the Board's Medical Advisor, a voting member, that applicant's BH diagnosis of PTSD outweighs applicant's disobeying an order and dereliction of duty that were used as part of the basis for separation. However, the applicant's offenses of false statements and inappropriate relationship are not mitigated, and therefore the Board concluded those wrongful acts remained valid for applicant's basis for separation. b. Response to Contention(s): (1) The applicant contends the narrative reason and corresponding SPD code for the discharge needs to be changed. The Board determined the narrative reason was proper and equitable and voted not to change it. (2) The applicant contends suffering from chronic low back pain and PTSD. The applicant contends he would like to receive the medical services that he needs and has not received from the VA. Eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance to obtain VA medical services. (3) The applicant contends he struggles with PTSD on a daily basis. The Board determined that this contention was valid and voted to upgrade the characterization of service due to applicant's PTSD partially mitigating the applicant's basis for separation, specifically those offenses of difficulty with authority, avoidance, disobeying an order and dereliction of duty. (4) The applicant contends his PTSD was the root cause of his misconduct and if his chain of command had identified his PTSD as a mitigating factor in his misconduct, he would not have received an other than honorable discharge. The Board determined that this contention was valid and voted to upgrade the characterization of service due to PTSD partially mitigating the applicant's basis for separation, specifically those offenses of difficulty with authority, avoidance, disobeying an order and dereliction of duty. (5) The applicant contends good service, including two combat tours. The record confirms 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 the misconduct of false statements and inappropriate relationship, the applicant diminished the quality of service below that merited an honorable discharge at the time of separation. (6) The applicant contends, his discharge is punitive in nature, it stigmatizes the applicant's reputation and impedes his ability to gain employment. The Board does not grant relief to gain employment or enhance employment opportunities. However, the Board voted to grant partial relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. c. The majority of the Board determined the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service, as weighed against the non-mitigated basis for separation. The applicant may request a personal appearance hearing 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, even though upgraded by this Board, remains improper or inequitable. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to General, Under Honorable Conditions because the applicant had a BH condition of PTSD which partially mitigated the applicant's misconduct of difficulty with authority, avoidance, disobeying an order and dereliction of duty that were part of the basis for separation. However, the applicant's misconduct of false statements and inappropriate relationship diminished the quality of service below that meriting an honorable discharge. (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. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under Honorable Conditions c. Change Reason / SPD Code to: No Change d. 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 AR20210003398 1