1. Applicant's Name: a. Application Date: 16 December 2020 b. Date Received: 7 January 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 and a narrative reason change. The applicant through legal counsel seeks relief contending, in effect, that minimal misconduct was caused by undiagnosed PTSD. The applicant contends the character of his discharge should be upgraded in the interest of equity because his separation was based on misconduct that was exacerbated by PTSD and TBI's and that his discharge upgrade be based on impropriety because he was separated without a PTSD medical evaluation review. The applicant contends that he has suffered under the weight of a less-than-honorable discharge that was caused by traumatic events and mental health issues. Accordingly, he respectfully requests that the board give careful consideration to his request and find that he is deserving of an upgrade of his character discharge to honorable. The applicant contends he had outstanding officer evaluation throughout his service, his continued mental health deterioration spiraled into an inappropriate relationship, a near fatal overdose, and placement in inpatient care. Due to these situation, which can be traced directly to his TBI and PTSD, he received an inequitable and improper discharge of Under Other Than Honorable Conditions. Evidence in the record indicates the applicant had a prior records review on 16 September 2016. In a telephonic personal appearance hearing conducted on 15 November 2021, and by a 3-2 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 10 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: 14 June 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 16 January 2012 (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 a series of substantiated derogatory activity resulting in a General Officer Memorandum of Reprimand, dated 10 February 2011; an Article 15, under the UCMJ, dated 9 February 2011; and, a referred Officer Evaluation Report for the period of 30 May 2010 - 21 January 2011, which was filed in his Official Military Personnel File. Conduct unbecoming an officer as indicated by the above-referenced items. (3) Legal Consultation Date: The applicant acknowledged that on 3 April 2012, he was notified that a Board of Inquiry has been rescheduled to convene at 0900, on 26 April 2012, and that this board of Inquiry would determine if he should be eliminated from the U.S. Army and if eliminated the appropriated characterization of service that he should receive. On 22 March 2012, the applicant under the provision of Army Regulation 600-8-24, notice was given that a Board of Inquiry would hold a hearing on 30 April 2012, to determine whether or not he should be retained on active duty. If he failed to appear before the board due to being absent without leave, he may be discharged from or retained in the service by the discharge authority without personal appearance before the board. On 10 May 2012, the applicant having been informed that he was being considered for elimination, requested discharge from the Army under the provision of AR 600-8-24, Chapter 4, in lieu of further elimination proceedings. The applicant understood that he had the right to appear before a Board of Inquiry with legally qualified counsel who could be a member of the Judge Advocated General's Corp or civilian counsel retained by him, or to present matters in explanation, rebuttal or defense concerning the allegation in his case. He thereby voluntarily waived consideration of his case by a board of Inquiry, a statement on his behalf was not submitted with his request. If this request for discharge was accepted, he understood that he would be furnished an Honorable, General (Under Honorable Conditions), or Under Other Than Honorable Conditions Discharge, ad determined by HQDA. He understood he could not specify an effective date for this discharge. He further understood that if this resignation was accepted Under Other Than Honorable Conditions, he would not be entitled to compensation for unused accrued leave and the he may be barred from all rights, based on the period of service from which he would be separated under any laws administered by the Department of Veterans Affairs, except War Risk, US Government (Converted), National Service Life Insurance, Service Member's Group Life Insurance policies he may hold. (4) GOSCA Recommendation Date / Characterization: On 14 May 2012, the GOSCA, after careful consideration, recommended approval of the applicant's unconditional request for discharge and that the applicant be discharged from the service with an Under Other Than Honorable Conditions characterizations of service. (5) DA Board of Review for Eliminations: On 6 June 2012, 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: 8 June 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Appointment: 5 December 2005 / Indefinite b. Age at Enlistment / Education / GT Score: 23 / BA Degree / NA c. Highest Grade Achieved / MOS / Total Service: O-3 / 15A C2, Aviation, General / 11 years, 8 months, 5 days d. Prior Service / Characterizations: USAR/Cadet, 29 August 2001 to 21 September 2005 Appointed 2LT / USAR (22 September 2005 to 4 December 2005) e. Overseas Service / Combat Service: Hawaii, SWA / Iraq (5 June 2007 to 15 October 2007 and 4 August 2009 to 6 August 2010) f. Awards and Decorations: BSM, ARCOM, AAM, MUC-2, NDSM, GWTEM, GWTSM, ICM-2CS, ASR, OSR, MOVSM g. Performance Ratings: 2 May 2007 to 29 May 2009, Best Qualified (Three Reports) 30 May 2009 to 29 May 2010, Best Qualified 30 May 2010 to 21 January 2011, Do Not Promote h. Disciplinary Action(s) / Evidentiary Record: GO Article 15, dated 25 January 2011, for fraternizing with SPC J B (between o/a 15 September 2010 and 31 December 2010), in violation of Article 133 and Article 134, UCMJ. The punishment consisted of a written letter of reprimand. General Officer Memorandum of Reprimand (GOMOR), dated 10 February 2011, for: as a married officer, wrongfully entered into an inappropriate relationship with a junior Solider under his command (between o/a 15 September 2010 and 31 December 2010). GOMOR, dated 2 March 2012, for intentionally misleading his flight surgeon on 23 September 2001 by failing to inform him of his medical treatments and pain medication received from multiple medical treatment facilities (between on or about 23 August - 19 September 2011). Furthermore, he took steps to conceal these events when he insisted on cash payments to the treating physicians in order to reduce the paper trail. DA Form 4187 (Personnel Action), dated 7 May 2012, indicates the applicant's duty status changed from "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective 7 May 2012. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Memorandum for Commander, dated 10 May 2012, "Summary or Rehabilitation, indicates the applicant was enrolled in the Army Substance Abuse Program (ASAP) on 21 January 2011. The applicant received outpatient service for DSM-IV TR diagnostic Code 304.00 Opiate Dependence and 305.00 Alcohol Abuse. The applicant PCS to Fort Rucker in May of 2011; ASAP Fort Rucker received the applicant as a PCS Gain on 2 March 2012. It was determined by the Clinical Program Manager for the ASAP that in light of the extensive treatment opportunities the applicant had received, it appeared that he could not or would not be compliant with substance abuse treatment. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and a list of exhibits A-Y. 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), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Service-member discharged from active military service within 15 years of the Service-member'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. Delete if NA (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 and a narrative reason change. The applicant's AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of record indicates that separation action was initiated against the applicant for a series of substantiated derogatory activity resulting in a General Officer Memorandum of Reprimand, dated 10 February 2011; an Article 15, under the UCMJ, dated 9 February 2011; and, a referred Officer Evaluation Report for the period of 30 May 2010 - 21 January 2011, which was filed in his Official Military Personnel File. Conduct unbecoming an officer as indicated by the above-referenced items. The applicant opted to resign in lieu of elimination IAW AR 600-8-24, Chapter 4. The AD Hoc Review Board recommended that the applicant's resignation be accepted and the Deputy Assistant Secretary of the Army (Review Boards) approved his resignation and directed the applicant be separated per the governing regulation. 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 through legal counsel seeks relief contending, in effect, that minimal misconduct was caused by undiagnosed PTSD. The applicant contends the character of his discharge should be upgraded in the interest of equity because his separation was based on misconduct that was exacerbated by PTSD and TBI's and that his discharge upgrade be based on impropriety because he was separated without a PTSD medical evaluation review. The applicant contends that he has suffered under the weight of a less-than-honorable discharge that was caused by traumatic events and mental health issues. Accordingly, he respectfully requests that the board give careful consideration to his request and find that he is deserving of an upgrade of his character discharge to honorable. The applicant contends he had outstanding officer evaluation throughout his service, his continued mental health deterioration spiraled into an inappropriate relationship, a near fatal overdose, and placement in inpatient care. Due to these situation, which can be traced directly to his TBI and PTSD, he received an inequitable and improper discharge of Under Other Than Honorable Conditions. The applicant's contentions were noted; Memorandum for Commander, dated 10 May 2012, "Summary or Rehabilitation, indicates the applicant was enrolled in the Army Substance Abuse Program (ASAP) on 21 January 2011. The applicant received outpatient service for DSM-IV TR diagnostic Code 304.00 Opiate Dependence and 305.00 Alcohol Abuse. The applicant PCS to Fort Rucker in May of 2011; ASAP Fort Rucker received the applicant as a PCS Gain on 2 March 2012. It was determined by the Clinical Program Manager for the ASAP that in light of the extensive treatment opportunities the applicant had received, it appeared that he could not or would not be compliant with substance abuse treatment. The evidence of records indicates the applicant committed several discrediting offenses, which constituted a departure from the standards of conduct expected of Officers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): N/A b. The applicant presented the following additional contention(s): Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence; specifically that the applicant suffered from PTSD, TBI and was overprescribed Opiate pain killers for a significant period of time which combined with personal stressors lead to the applicant's misconduct. c. Counsel / Witness(es) / Observer(s): (observer) 10. 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. The applicant held in-service diagnoses of Adjustment Disorder. Major Depressive Disorder, Personality Disorder, Alcohol Abuse, Opiate Dependence, and PTSD; however, the PTSD diagnosis was in debate. Post-service, there are conflicting opinions on whether or not the applicant has PTSD or TBI; however, he is service-connected for PTSD and TBI. The applicant is diagnosed with Major Depressive Disorder, Substance Use Disorders, and Antisocial Personality Disorder. Additionally, both in-service and post-service records indicate ongoing perpetration of intimate partner violence. (2) Did the condition exist or experience occur during military service? Yes. It is this medical advisor's opinion the applicant's records support in-service diagnoses of Adjustment Disorder, Personality Disorder, Alcohol Abuse, Opiate Dependence, and possibly Major Depressive Disorder. However, in-service and post-service objective assessments and reports by providers treating the applicant in an intensive and/or 24hr. setting strongly support the absence of PTSD. Irrespective of this advisor's professional opinion, liberal consideration will be applied and the applicant's service-connected PTSD will be applied toward service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. Per liberal consideration, the applicant's service-connected PTSD would mitigate AWOL and the substance based offenses of obtaining controlled substances with acts to avoid detection. However, they do not mitigate fraternization or entering an inappropriate relationship with a junior Soldier under his command. Specifically, records show a thought out series of steps over time with the applicant admitting he knew his acts were inappropriate and there would be consequences if the relationship was discovered. (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the applicant's non-medically mitigated offenses of the lengthy, known inappropriate relationship outweighed the applicant's diagnoses of Adjustment Disorder. Major Depressive Disorder, Personality Disorder, Alcohol Abuse, Opiate Dependence, and TBI/PTSD for the reasons listed in (3) above. b. The applicant through legal counsel seeks relief contending, in effect, that minimal misconduct was caused by undiagnosed PTSD. The lengthy, in-depth inappropriate relationship with a junior Solder in his command and multiple perpetrations of IPV are not considered minimal misconduct by the Board. These offenses are egregious in nature and prejudicial to good order and discipline. The Board took into account PTSD and the Army's long-term prescribed opiates, but did not find those at fully mitigating. c. The majority of the Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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, mitigating all abuse of drug related misconduct the applicant's diagnoses of Adjustment Disorder, Major Depressive Disorder, Personality Disorder, Alcohol Abuse, Opiate Dependence, and TBI/PTSD did not mitigate the offenses of a lengthy (3.5 month) and highly-involved fraternization relationship with a junior Soldier in his command. This offense involved not only an inappropriate relationship, but abused the position of trust of company commander. This inappropriate relationship was the basis of separation and the applicant did not supply sufficient independent corroborating evidence to overcome the presumption of government regularity in regards to this basis; despite mitigation of all drug related misconduct, and the discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, 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. 11. 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 AR20210005681 1