1. Applicant's Name: a. Application Date: 5 October 2020 b. Date Received: 13 October 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 under other than honorable conditions. The applicant requests, through counsel, an upgrade to honorable along with a narrative reason, reentry (RE) code, and an special program designator (SPD) code change. The applicant's counsel seeks relief contending, in effect, the applicant's chain of command made a material error of discretion regarding the discharge from the Army. The applicant's court-martial with a reduction in rank and forfeiture of pay was sufficient punishment for the offenses and the under other than honorable discharge was too harsh of a punishment and in excess. While the applicant pled guilty to adultery, the applicant's actions did not meet the legal criteria for adultery because the applicant's conduct had no impact on the unit or the unit's ability to perform military duties because no one knew of the applicant's extramarital relationship, and the applicant continued a completely professional relationship while at work. There was a significant disparity between the punishment the applicant received and that the other party received. The applicant's counsel states the applicant had honorable service and received multiple accolades. The applicant made a mistake in judgement by making a false statement and took responsibility for it. When considering the totality of the circumstances based on propriety and equity, the applicant deserves to have the discharge upgraded. b. Board Type and Decision: In a records review conducted on 10 January 2024, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length of service, quality, and combat experience along with the harshness of the discharge that the discharge was inequitable and warranted an upgrade. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to General. The Board determined the narrative reason code, SPD code and reentry 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: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 8 December 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 27 September 2016 (2) Basis for Separation: The applicant was informed of the following reasons: Between on or about 20 May 2016 and on or about 23 May 2016, the applicant conspired with Ms. B to commit an offense under the Uniform Code of Military Justice, to wit; to make false official statements to law enforcement; on or about 8 June 2016, the applicant made a false official statement to Special Agent L; and on divers occasions between on or about 15 December 2015 and on or about 14 June 2016, the applicant wrongfully had sexual intercourse with Ms. B, a woman not the applicant's spouse. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 8 November 2016 (5) Administrative Separation Board: The applicant waived consideration of the case by an administrative separation board. (6) Separation Decision Date / Characterization: 2 December 2016/ Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 March 2012 / 6 years b. Age at Enlistment / Education / GT Score: 31/ Associate Degree / 112 c. Highest Grade Achieved / MOS / Total Service: E-7 / 11B10, Infantryman / 12 years, 6 months, 8 days d. Prior Service / Characterizations: RA, 1 June 2004 - 12 March 2012 / HD e. Overseas Service / Combat Service: Germany, SWA / Iraq (7 August 2009 - 21 July 2010), (28 June 2006 - 28 September 2007) f. Awards and Decorations: ICM-CS-3, ARCOM-V-Device, ARCOM-4, AAM-2, MUC-2, VUA, AGCM-4, NDSM, GWOTSM, NCOPDR-3, ASR, OSR-2MOVSM, CIB, EIB, Pathfinder Badge, Parachutist Badge, Expert Marksmanship Badge-Rifle Bar, Drill Sergeant Identification Badge g. Performance Ratings: 15 October 2011 30 June 2012 / Among The Best 1 July 2012 - 31 May 2013 / Among The Best 1 June 2013 - 2 December 2013 / Among The Best 3 December 2013 - 1 August 2014/ Among The Best 2 August 2014 -1 August 2015/ Among The Best 2 August 2015 - 31 December 2015 / Among The Best 1 January 2016- 1 May 2016 / Qualified h. Disciplinary Action(s) / Evidentiary Record: (1) Law Enforcement Report, 5 January 2017, reflects, in part, the applicant and unnamed women were interviewed and denied a sexual assault occurred and denied being in a sexual relationship. The applicant was re-interviewed and stated he and the unnamed woman engaged in a consensual sexual relationship. The applicant further stated the two conspired to deceive the U.S. Government during an investigation about a consensual sexual relationship to preserve their careers by providing false statements. (2) Record of Trial by Summary Court-Martial, 9 November 2016, reflects the applicant pled guilty and was found guilty of conspiring with Ms. B to commit an offense under the Uniform Code of Military Justice by making a false official statement; making false official statement to a Special Agent; and wrongfully having intercourse with Ms. B, a woman not the applicant's wife. The punishment consisted of reduction to staff sergeant /E-6 and forfeiture of $2408.20 pay per month for one month. 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, DD Form 214, ARCOM Certificate, Counsel's Legal Brief with 32 exhibits (73 pages) 6. POST SERVICE ACCOMPLISHMENTS: The applicant has obtained a bachelor's degree and is currently enrolled working towards a master's degree. 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 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (6) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (7) Paragraph 14-12c, states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is 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 along with a narrative reason, RE code, and an SPD code change. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant's counsel requests the applicant's narrative reason, RE, and SPD codes be changed. The applicant was separated under the provisions of AR 635-200, Chapter 14-12c, with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this chapter is "Misconduct (Serious Offense)" and the separation code is "JKQ." Army Regulation 635-5, Separation Documents governs the 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 as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason or SPD code to be entered under this regulation. RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. The applicant's counsel contends the applicant's chain of command made a material error of discretion regarding the discharge from the Army. The applicant's court-martial with a reduction in rank and forfeiture of pay was sufficient punishment for the offenses and the under other than honorable discharge was too harsh of a punishment and in excess. The applicant's counsel contends while the applicant pled guilty to adultery, the applicant's actions did not meet the legal criteria for adultery because the applicant's conduct had no impact on the unit or the unit's ability to perform military duties because no one knew of the applicant's extramarital relationship, and the applicant continued a completely professional relationship while at work. The applicant contends there was a significant disparity between the punishment the applicant received and that in which the other party involved received. The applicant's counsel states the applicant had honorable service and received multiple accolades. The applicant's counsel contends the applicant made a mistake in judgement by making a false statement and took responsibility for it. When considering the totality of the circumstances based on propriety and equity, the applicant deserves to have the discharge upgraded. 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 diagnosis: The applicant was diagnosed with Anxiety Disorder NOS in-service, but 8 years prior to discharge. (2) Did the condition exist or experience occur during military service? Yes. The applicant was diagnosed with Anxiety Disorder NOS in-service, but 8 years prior to discharge. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that beyond the diagnosis being 8 years prior and resolved, there is no nexus between the diagnosis and misconduct. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the available evidence did not support a conclusion that the applicant's Anxiety Disorder outweighed the medically unmitigated offense of adultery and making false official statements. b. Response to Contention(s): (1) The applicant's counsel contends the applicant's chain of command made a material error of discretion regarding the discharge from the Army. The applicant's court-martial with a reduction in rank and forfeiture of pay was sufficient punishment for the offenses and the under other than honorable discharge was too harsh of a punishment and in excess. The Board considered this contention and determined the applicant's discharge was too harsh and voted to grant relief. (2) The applicant's counsel contends while the applicant pled guilty to adultery, the applicant's actions did not meet the legal criteria for adultery because the applicant's conduct had no impact on the unit or the unit's ability to perform military duties because no one knew of the applicant's extramarital relationship, and the applicant continued a completely professional relationship while at work. The Board considered this contention and based on the applicant's length of service, quality, and combat experience the Board determined the discharge was too harsh. (3) The applicant contends there was a significant disparity between the punishment the applicant received and that in which the other party involved received. Applicable regulations state each case must be decided on an individual basis, considering the unique facts and circumstances of the case. The Board considered this contention and based on the applicant's length of service, quality, and combat experience the Board determined the discharge was too harsh and voted to grant relief. (4) The applicant's counsel states the applicant had honorable service and received multiple accolades. The Board will consider the applicant service accomplishments and the quality of service according to the DODI 1332.28. The Board considered this contention and based on the applicant's length of service, quality, and combat experience the Board determined the discharge was too harsh and voted to grant relief. (5) The applicant's counsel contends the applicant made a mistake in judgement by making a false statement and took responsibility for it. When considering the totality of the circumstances based on propriety and equity, the applicant deserves to have the discharge upgraded. The Board considered this contention and based on the applicant's length of service, quality, and combat experience the Board determined the discharge was too harsh and voted to grant relief. c. The Board determined the discharge is inequitable based on the applicant's length of service, quality, and combat experience along with the harshness of the discharge that the discharge was inequitable and warranted an upgrade. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to General. The Board determined the narrative reason code, SPD code and reentry code were proper and equitable and voted not to change them. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to General because the Board determined the applicant's length of service, quality, and combat experience along with the harshness of the discharge that the discharge was inequitable and warranted an upgrade. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code based on no medical mitigation and determined 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: Yes b. Change Characterization to: General, Under Honorable Conditions 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 AR20210007558 1