1. Applicant's Name: a. Application Date: 17 April 2020 b. Date Received: 24 June 2020 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests, through counsel, an upgrade to honorable. The applicant's counsel seeks relief contending, in effect, the discharge is inequitable, and relief is warranted based upon the applicant's service history; awards and decorations; letters of commendation; combat service; wound received in action; record of promotions; level of responsibility; and the length of service. The applicant states immediately after being discharge the applicant was received inpatient hospital treatment for service-connected post-traumatic stress disorder (PTSD), depression, and anxiety. The applicant also states the discharge is hindering employment opportunities and veteran benefits. The applicant is the Sergeant at Arms for Chapter 723 of the MOPH and assisted in establishing and acting board member for the Combat Wounded of Texas, a nonprofit established to assist combat wounded veterans. b. Board Type and Decision: In a records review conducted on 28 June 2023, and by a 4-1 vote, the Board determined the discharge is inequitable based on the applicants based on the applicant's length, quality, combat and post service accomplishment and elapsed time since the misconduct outweighing the basis for separation - lying, fraternization and adultery. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14- 12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. Please see Section 9 of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Unacceptable Conduct / AR 600-8-24, Paragraph 4-2b and 4-24a / BNC / NA / General (Under Honorable Conditions) b. Date of Discharge: 6 June 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Board of Inquiry (BOI): NIF (5) GOSCA Recommendation Date / Characterization: NIF (6) DASA Review Board Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Appointment: 3 August 2007 / Indefinite b. Age at Appointment / Education: 22 / Master's Degree c. Highest Grade Achieved / MOS / Total Service: O-3 / 12A, Engineer, General / 8 years, 10 months, 1 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (19 September 2009 - 30 August 2010) f. Awards and Decorations: PH, ARCOM-2, AAM-4, MUC, NDSM, GWOTSM, ICM-CS, ASR, OSR, Sapper Tab, CAB g. Performance Ratings: 16 August 2015 - 24 May 2016 / Highly Qualified 25 March 2015 - 15 August 2015 / Highly Qualified 14 October 2013 - 23 June 2014 / NIF 24 June 2014 - 24 March 2015 / NIF 13 August 2011 - 13 October 2013 / Best Qualified 15 November 2010 - 12 August 2011 / Best Qualified 5 April 2010 - 14 November 2010 / Best Qualified 19 September 2009 - 4 April 2010 / Best Qualified 26 December 2008 - 18 September 2009 / Best Qualified 16 August 2008 - 25 December 2008 / Best Qualified 6 July 2007 - 15 August 2008 / Best Qualified h. Disciplinary Action(s) / Evidentiary Record: GOMOR, dated 11 February 2015, reflects between 1 May 2014 and 1 November 2014, the applicant willingly engaged in an unprofessional relationship with a subordinate by committing adultery and subsequently lying about said conduct. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Legal Brief, personal statement, Chain of Command Recommendations, Memorandums of Support-3, OERs-4, PH Certificate, ARCOM Certificate, AAM Certificate, DD Form 214 6. POST SERVICE ACCOMPLISHMENTS: The is the Sergeant at Arms for Chapter 723 of the MOPH and assisted in establishing and acting board member for the Combat Wounded of Texas, a nonprofit established to assist combat wounded veterans. 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 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. Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security. A discharge of honorable, general, or under other than honorable conditions characterization of service may be granted. 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, through counsel, an upgrade to honorable. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant's service AMHRR is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. However, the applicant's record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature. The DD Form 214 indicates the applicant was discharged under the provisions of Army Regulation 600-8-24, paragraphs 4-2b and 4-2a by reason of Unacceptable Conduct, with a characterization of service of General (Under Honorable Conditions). The applicant's counsel contends the discharge is inequitable, and relief is warranted based upon the applicant's service history; awards and decorations; letters of commendation; combat service; wound received in action; record of promotions; level of responsibility; and the length of service. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The applicant states immediately after being discharge the applicant was received inpatient hospital treatment for service-connected post-traumatic stress disorder (PTSD), depression, and anxiety. The applicant AMHRR is void of any mental health diagnosis or a mental status evaluation/ behavioral health evaluation. The applicant states the discharge is hindering employment opportunities and veteran benefits. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill 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 Board does not grant relief to gain employment or enhance employment opportunities. The applicant is the Sergeant at Arms for Chapter 723 of the MOPH and assisted in establishing and acting board member for the Combat Wounded of Texas, a nonprofit established to assist combat wounded veteran. 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. If the applicant desires a personal appearance hearing, it is the applicant responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration because they are not available in the official record. 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 that the applicant has the following potentially mitigating diagnoses/experiences: PTSD (50%SC). (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found VA service connection of applicant's PTSD establishes it occurred during active service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that there are no mitigating BH conditions. While the applicant has been diagnosed with PTSD, MDD and Anxiety DO, unspecified, none of these conditions mitigates the offense of lying, fraternization or adultery given that none of these conditions affects one's ability to distinguish right from wrong and act in accordance with the right. Additionally, adultery, fraternization and lying are not part of the natural history or sequelae of the aforementioned BH conditions. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant's PTSD and MDD outweighed the basis for separation - offense of lying, fraternization or adultery- for the aforementioned reason. b. Response to Contention(s): (1) The applicant requests, through counsel, an upgrade to honorable. The Board considered this contention during proceedings and voted to grant an upgrade based on the applicant's length, quality, combat and post service accomplishment and elapsed time since the misconduct outweighing the applicant's offense of lying, fraternization or adultery basis for separation. Thus, and upgrade of the characterization of service is warranted. (2) The applicant's counsel contends the discharge is inequitable, and relief is warranted based upon the applicant's service history; awards and decorations; letters of commendation; combat service; wound received in action; record of promotions; level of responsibility; and the length of service. The Board considered this contention during proceedings and determined the discharge is inequitable based on the applicant's length quality, combat and post service accomplishment and elapsed time since the misconduct. Also, while the applicant has been diagnosed with PTSD, MDD and Anxiety DO, unspecified, none of these conditions mitigates the offense of lying, fraternization or adultery given that none of these conditions affects one's ability to distinguish right from wrong and act in accordance with the right. Additionally, adultery, fraternization and lying are not part of the natural history or sequelae of the aforementioned behavioral conditions. (3) The applicant states immediately after being discharge the applicant was received inpatient hospital treatment for service-connected post-traumatic stress disorder (PTSD), depression, and anxiety. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's length, quality, combat and post service accomplishment and elapsed time since the applicant's misconduct outweighing the applicant's offense of lying, fraternization, or adultery basis for separation. (4) The applicant states the discharge is hindering employment opportunities and veteran benefits. Eligibility for veteran's benefits to include educational benefits under the Post- 9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. The Board considered this contention and determined that 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. (5) The applicant is the Sergeant at Arms for Chapter 723 of the MOPH and assisted in establishing and acting board member for the Combat Wounded of Texas, a nonprofit established to assist combat wounded veteran. The applicant's service accomplishments and the quality of applicant's service were considered as 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. In this case, the Board voted to grant relief based on the misconduct outweighing the applicant's offense of lying, fraternization, or adultery basis for separation. c. The Board determined the discharge is inequitable based on the applicant's length, quality, combat and post service accomplishment and elapsed time since the offense of lying, fraternization, or adultery 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 Honorable based on the applicant's significant quality of service that outweighed the partially mitigated misconduct that was the basis for separation. Thus, the prior characterization is no longer appropriate. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, as the reason the applicant was discharged was both proper and equitable. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: Honorable c. Change Reason / SPD 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 AR20210006008 1