1. Applicant’s Name: a. Application Date: 2 September 2022 b. Date Received: 13 September 2022 c. Counsel: Yes 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 and separation program designator SPD) code change. The applicant seeks relief contending, in effect, the applicant’s BOI was improperly constituted in that it did not consists of at least one member of the applicant’s special branch (aviation), nor was the applicant advised of the right to make such a request; at the time of the alleged misconduct, the applicant was suffering from behavioral health conditions which qualified the applicant for consideration and relief pursuant to the Hagel Memorandum; and the applicant’s overall service record and post-discharge conduct are deserving of an honorable characterization of service. b. Board Type and Decision: In a telephonic personal appearance conducted on 5 June 2023, and by a 5-0 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 / JNC / NA / Under Other Than Honorable Conditions b. Date of Discharge: 3 September 2021 c. Separation Facts: (1) Date of Notification of Intent to Separate: 22 March 2019 (2) Basis for Separation: The applicant was required to Show Cause for retention based on misconduct which resulted in a General Officer Memorandum of Reprimand, dated 17 January 2019, which was filed in the applicant’s AMHRR. The applicant was reprimanded for misconduct and conduct unbecoming of an officer and derogatory information as indicated by the above-referenced GOMOR. The applicant elected to submit a resignation in lieu of elimination, the request was denied by the GOSCA and the DASA. (Provided by applicant’s counsel) (3) Board of Inquiry (BOI): NIF (4) Legal Consultation Date: NIF (5) GOSA Recommendation Date / Characterization: NIF (6) DASA Review Board Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Appointment: 30 September 2011 / Indefinite b. Age at Appointment / Education: 23 / Bachelor’s Degree c. Highest Grade Achieved / MOS / Total Service: O-3 / 15B D7 2B Aviation Combined ARM / 9 years, 11 months, 1 day d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea, SWA/ Afghanistan (10 April 2015 – 10 January 2016) f. Awards and Decorations: AM-2, ARCOM, AAM, NDSM, GWOTSM, KDSM, ACM-CS, ASR, OSR, NATO MDL, CAB, Basic Aviation Badge, Air Assault Badge g. Performance Ratings: 16 June 2018 – 10 January 2019 / Not Qualified 20 December 2016 – 15 June 2018 / Most Qualified 3 May 2016 – 19 December 2016 / Highly Qualified 13 August 2015 – 2 May 2016 / Highly Qualified 13 August 2014 – 12 August 2015 / Most Qualified 30 September 2011 – 12 August 2014 / Highly Qualified h. Disciplinary Action(s) / Evidentiary Record: Memorandum, subject: AR 15-6 findings and recommendation for investigation…, dated 22 October 2018, reflects an investigating officer found the applicant violated UCMJ Article 107 (False Official Statements) by signing a sworn statement stating the only females there was personal conversations with were SPC and a PVT, but when the SGT and the SPC came forward about personal and sexual conversations , the applicant finally revealed those conversation; the applicant violated Article 93 (Cruelty and maltreatment) for sexual harassment or 16th CAB Sexual Harassment Policy Letter #3 due to sexual comments the applicant made that were deliberate and repeated where the applicant discussed masturbating to a picture of a SGT and that the applicant wanted to do bad, or naughty, things to a SPC; the IO found a preponderance of evidence showing the applicant violated Article 134 (Fraternization) or 16th CAB Fraternization Policy Letter #5 by starting personal conversations through Facebook messenger that contain terms of military equality with a SGT, two SPC’s, SPC and a PV2; the applicant violated Article 133 (Conduct unbecoming an officer and gentlemen) through unprofessional, personal, or sexual conversations with a SGT, two SPC’s, and a PV2. The IO recommended removing the applicant from the position as Company Commander for violating Article 107, for violating Article 93 the IO recommended the applicant receive a GOMOR to remain in the applicant’s permanent file; for violating Article 134, the IO recommended the applicant lead brigade wide retraining on fraternization; for violating Article 133, the IO recommended a Brigade Commander local letter of reprimand. (Provided by applicant’s counsel) GOMOR, dated 17 January 2019, reflects the applicant was reprimanded for engaging in inappropriate communications of a personal and sexual nature with at least four junior enlisted female Soldiers in the applicant’s unit. The communications amounted to sexual harassment, cruelty, and maltreatment; and include repeated advances of the applicant’s desire to form a personal relationship and socialize with one Soldier, requesting nude photos from one Soldier and offer of sexual favors to another Solder. Additionally, the applicant lied about the contact with two of the female Soldiers. A Report of mental Status Evaluation (MSE), dated 29 April 2019, reflects the applicant did not have a TBI/concussion or BH condition that would cause the applicant to fail retention standards. The medical record does not contain substantial evidence that the applicant met the criteria for a condition requiring referral to IDES but had not yet received a diagnosis. The opinion was based on the clinical judgement of the provider and did not constitute a forensic legal opinion as it pertains to criminal responsibility, state of mind at the time of the alleged behavior that was the basis for the administrative separation competency, or other determinations typically required by courts. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: The applicant provides a letter from the Department of Veteran Affairs (VA), dated 8 November 2022, which reflects the applicant was granted service connection for treatment purposes only for, in part, adjustment disorder with mixed anxiety and depression, chronic, also claimed with insomnia. Post Traumatic Stress Disorder diagnosed in a Compensation and Pension examination. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Legal Brief, DD Form 214, IO investigation, Hagel Memorandum, AMHRR File (239 total pages). 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 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. 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 to officers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4-2b, unacceptable conduct. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests, through counsel, an upgrade to honorable along with a narrative reason and separation program designator 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 service AMHRR is void of the complete facts and circumstances concerning the events which led to the 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). The DD Form 214 indicates the applicant was discharged under the provisions of Army Regulation 600-8-24, by reason of Unacceptable Conduct, with a characterization of service of Under Other Than Honorable Conditions. The applicant requests the applicant’s narrative reason and SPD code be changed. The applicant was separated under the provisions AR 600-8-24 with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Unacceptable Conduct.” Army Regulation 635-8, Separation Documents, governs preparation of the DD Form 214 and dictates that 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. There is no provision for any other reason to be entered under this regulation. The SPD code “JNC” is the appropriate code to assign to officers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4-2b. The applicant contends the applicant’s BOI was improperly constituted in that it did not consists of at least one member of the applicant’s special branch (aviation), nor was the applicant advised of the right to make such a request. The applicant’s AMHRR is void of the BOI proceedings. the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant contends at the time of the alleged misconduct, the applicant was suffering from behavioral health conditions which qualified the applicant for consideration and relief pursuant to the Hagel Memorandum. The applicant’s AMHRR is void of a MSE, but the applicant’s counsel provides evidence reflecting the applicant underwent a MSE on 29 April 2019, which reflects the applicant did not have a TBI/concussion or BH condition that would cause the applicant to fail retention standards. The medical record does not contain substantial evidence that the applicant met the criteria for a condition requiring referral to IDES but had not yet received a diagnosis. The opinion was based on the clinical judgement of the provider and did not constitute a forensic legal opinion as it pertains to criminal responsibility, state of mind at the time of the alleged behavior that was the basis for the administrative separation competency, or other determinations typically required by courts. The applicant’s counsel applicant provides a letter from the Department of Veteran Affairs (VA), dated 8 November 2022, which reflects the applicant was granted service connection for treatment purposes only for, in part, adjustment disorder with mixed anxiety and depression, chronic, also claimed with insomnia. The applicant contends the applicant’s overall service record and post-discharge conduct are deserving of an honorable characterization of service. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. 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. 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): b. The applicant presented the following additional contention(s): c. Counsel / Witness(es) / Observer(s): Applicant, and counsel (Mr. J.G.) provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence. 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, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses: Adjustment Disorder; Post Traumatic Stress Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board’s Medical Advisor found that the applicant’s Adjustment Disorder and PTSD existed during applicant’s 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 the applicant’s PTSD and Adjustment Disorder do not mitigate the applicant’s offenses of engaging in inappropriate relationships as inappropriate relationships are not a progression or sequela of trauma or adjustment difficulties. Rather, the applicant’s engaging in appropriate relationships aligns with a characterological pattern of maladaptive interpersonal relationships in which the applicant seeks attention, manipulates, and does not respect others’ feelings. (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 PTSD and Adjustment Disorder outweighed the medically unmitigated offense of knowingly engaging in inappropriate communications of a personal and sexual nature with at least four female enlisted Soldiers. b. Response to Contention(s): (1) The applicant contends at the time of the alleged misconduct, the applicant was suffering from behavioral health conditions which qualified the applicant for consideration and relief pursuant to the Hagel Memorandum. The Board liberally considered this contention and determined that the available evidence did not support a conclusion that the applicant’s PTSD and Adjustment Disorder outweighed the medically unmitigated offense of knowingly engaging in inappropriate communications of a personal and sexual nature with at least four female enlisted Soldiers. (2) The applicant contends the applicant’s BOI was improperly constituted in that it did not consist of at least one member of the applicant’s special branch (aviation), nor was the applicant advised of the right to make such a request. The Board considered this contention, but determined that AR 600-8-24, paragraph 4-7d does not create a right to a special branch board member at misconduct elimination proceedings. Rather, an officer is permitted to request that a voting member be a member of the respective branch, and one will be appointed “if reasonably available.” Applicant had counsel at the time of that board and did not provide evidence that such a request was made prior to the Board of Inquiry. Therefore, no discharge upgrade is warranted. (3) The applicant contends the applicant’s overall service record and post-discharge conduct are deserving of an honorable characterization of service. The Board considered this contention and determined that nine years of service, including numerous awards and combat service in Afghanistan, does not outweigh the seriousness of applicant’s misconduct of knowingly engaging in inappropriate communications of a personal and sexual nature with at least four female enlisted Soldiers. Therefore, a discharge upgrade is not warranted. (4) The applicant contends that the Board of Inquiry recommending applicant’s separation only considered the sum of the derogatory information referenced in the GOMOR applicant received dated 17 January 2019, and that the Board of Inquiry did not consider each allegation individually. The Board considered this contention non-persuasive during deliberations. The Board of Inquiry was presented with the complete AR 15-6 investigation that supported the GOMOR applicant received dated 17 January 2019, and thus was able to consider whether the allegation that applicant committed the referenced misconduct was supported by a preponderance of the evidence. Therefore, a discharge upgrade is not warranted. c. The Board determined that the discharge is, at this time, proper and equitable, considering 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 of all the evidence before the Board, the applicant’s Adjustment Disorder and Post Traumatic Stress Disorder did not outweigh the applicant’s medically unmitigated offenses of knowingly engaging in inappropriate communications of a personal and sexual nature with at least four female enlisted Soldiers. The Board also considered the applicant's contentions regarding an impropriety in the Board of Inquiry composition and that board’s consideration of the allegation and evidence but found insufficient evidence to support either contention. The Board considered the applicant’s otherwise good service and found that the totality of the applicant's record does not warrant a discharge upgrade. 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. Therefore, the applicant’s Under Other Than Honorable Conditions discharge was proper and equitable as the applicant’s conduct fell below that level of satisfactory service warranting a General discharge or meritorious service warranted for an upgrade to Honorable discharge. (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. 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 Cite to findings and recs requirements in 600-8-24. Still could find that it wasn’t prejudicial. ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20220010766 1