AR20160012633

1. Applicants Name:

a. Application Date: 26 June 2016

b. Date Received: 11 July 2016

c. Counsel: Yes

2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable and a change to the narrative reason for his discharge. The applicant seeks relief contending, in effect, the discharge was both in error and it has served its purpose. He continues to be successful in his daily employment and life. The underlying allegations were false and the Government errored in discharging him.

Per the Boards Medical Officer, based on the information available for review at the Time, the applicant did not have mitigating medical or behavioral health conditions for the offenses which led to his separation from the Army. The applicant was separated for unacceptable conduct (attempted prohibited and unprofessional relationships with enlisted Soldiers) with a General (Under Honorable Conditions) discharge. The Army Ad Hoc Review Board memo, dated
8 July 2015, did not accept applicants resignation that he conditioned upon receiving no worse than an Honorable Discharge. Officer Elimination Case Memo, dated 21 Sept 2015, based on misconduct and moral or professional dereliction, and derogatory information, with a General (under Honorable Conditions) characterization of service. The electronic medical records (AHLTA) from October 2009 through October 2015 were reviewed (one encounter in June 2006 (hearing exam)). Report of Mental Status Evaluation (DA Form 3822), dated 21 January 2015, with no diagnosis on Axis I (reported behavioral health services off post for mild depression), Axis II deferred, Axis III none reported, with PTSD and MTBI screening both negative. Report of Medical Assessment (DD Form 2697), dated 23 January 2015, remarkable for pain in left knee x 2 months, mononucleosis infection, headaches, insomnia, and mental health concerns. Taking Flonase and Ibuprofen; reviewed with provider on 25 February 2015. Report of Medical History dated 21 January 2015, with several yes responses, headaches/nosebleeds, left knee pain, insomnia, past history of intermittent periods of depression, heartburn; reviewed with provider on 25 February 2015. Family Practice visits on 17 June 2015 for breathing related sleep disorder and follow-up on 20 July 2015 with diagnosis of OSA (obstructive sleep apnea) on PSG (polysomnogram) and CPAP Titration study both completed. Co-occurring mental, behavioral or medical conditions: none significant. The applicant met medical retention standards for mild depression (history reported by applicant from outside civilian provider) IAW (in accordance with) Chapter 3, Army Regulation (AR) 40-501, and following the provisions set forth in AR 635-40 that were applicable to the applicants era of service. The applicants medical conditions were duly considered during medical separation processing. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case.

In a personal appearance hearing conducted at Warner Robins, GA, on 17 November 2016, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable.

(Board member names available upon request)

3. DISCHARGE DETAILS:

a. Reason / Authority / Codes / Characterization: Unacceptable Conduct / AR 600-8-24, Paragraphs 4-2b and 4-24a / BNC / NA / General (Under Honorable Conditions)

b. Date of Discharge: 11 October 2015

c. Separation Facts:

(1) Date of Notification of Intent to Separate: 14 January 2015

(2) Basis for Separation:

Between 27 January 2014 and 29 September 2014, the applicant wrongfully attempted to engage in prohibited and unprofessional relationships with enlisted Soldiers by addressing several Soldiers by their first name and repeatedly transmitting numerous inappropriate, harassing, and unprofessional electronic messages to three female enlisted Soldiers within his brigade, to wit: I think you’re cute; do you want to meet me after work; I really like you; I can’t wait to see you; would you like to hang out; I have always wanted to kiss you; do you live by yourself; if you are up for it then I would be; let me know babe; I’m still married but can I come see you tonight; can I come hang out with you and your friends; and we can hang out later tonight, or words to that effect.

On 18December 2014, he received a nonjudicial punishment under Article 15, UCMJ for the aforementioned offenses.

(3) Legal Consultation: On 12 February 2015, the applicant submitted a conditional request for resignation in lieu of elimination.

On 8 July 2015, the applicants request for resignation in lieu of elimination case was denied, and case was referred to Board of Inquiry.

(4) Appearance before BOI Date: 27 April 2015

(4) BOI Recommended Characterization: General (Under Honorable Conditions)

(5) DA Ad Hoc Review Board Recommendation: General (Under Honorable Conditions)

(6) Separation Decision Date/Characterization: 21 September 2015 / General (Under Honorable Conditions)

4. SERVICE DETAILS:

a. Date Entered Active Duty (AD): 2 October 2009 / Ordered to Active Duty

b. Age at Date Entered AD / Education / GT Score: 23 / Bachelor of Arts Degree / NA

c. Highest Grade Achieved / MOS / Total Service: O-3 / 92A, 5P 2B Quarter Master, General / 9 years 10 month, 25 days

d. Prior Service / Characterizations: ARNG, 29 November 2005 to 8 August 2009 / HD
USAR, 9 August 2009 to 1 October 2009 / NA
e. Overseas Service / Combat Service: SWA / Iraq (20 May 2011 to 12 December 2011)

f. Awards and Decorations: MSM, AAM, NDSM, ICM-CS, GWOTSM, ASR

g. Performance Ratings:

2 October 2009 thru 29 March 2011, Satisfactory Performance, Must Promote
30 March 2011 thru 29 March 2012, Satisfactory Performance, Must Promote
30 March 2012 thru 15 December 2012, Satisfactory Performance, Must Promote
15 December 2012 thru 15 November 2013, Satisfactory Performance, Must Promote
13 May 2014 thru 8 January 2015, Unsatisfactory, RFC
9 January 2015 thru 15 May 2015, Proficient
16 May 2015 thru 22 September 2015, Proficient

h. Disciplinary Action(s) / Evidentiary Record:

GO Article 15, dated 16 December 2014, for attempting to engage in a prohibited relationship on two separate occasions with a junior enlisted Soldier (29September 2014 and on divers occasions between 27 January 2014 and 29 August 2014) and with an NCO
(19April 2014). The punishment consisted of forfeiture of $2,583 pay per month for two months and a written reprimand.

Report of Mental Status Evaluation, dated 21 January 2015, shows that the applicant was psychiatrically cleared for Chapter 4 consideration per his command.

i. Lost Time / Mode of Return: None

j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical Assessment, dated 27January 2015, indicates the applicant noted concerns for mental health, and Report Medical History, dated 25 February 2015, shows the applicant noted behavioral health issues.

5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; memorandum, dated 28 January 2015, Subject: Request for Commanders Inquiry Pursuant to AR 623-3; counsel appellate brief; separation packet; and two OERS covering period from 1 October 2009 thru 29March 2010, and from 13 May 2014 thru 8 January 2015.

6. POST SERVICE ACCOMPLISHMENTS: The applicant continues to be successful in his daily employment and life.

7. REGULATORY CITATION(S): 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.

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 “BNC” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4, paragraphs 4-2b and 4-24a(1), unacceptable conduct.

Secretary of Defense Memorandum for Secretaries of the Military Departments (Subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder, dated September 3, 2014), provided guidance to help ensure consistency across the military services in consideration of PTSD relevant to Service Members discharges.

Liberal consideration will be given in petitions for changes in characterization of service to service treatment record entries which document one of more symptoms which meet the diagnostic criteria of Post-Traumatic Stress Disorder (PTSD) or related conditions. Special consideration will be given to Department of Veterans Affairs (VA) determinations which document PTSD or PTSD-related conditions connected to military services. In cases where Service Records or any document from the period of service substantiated the existence of one or more symptoms of what is now recognized as PTSD or PTSD-related condition during the time of service, liberal consideration will be given to finding that PTSD existed at the time of service. Liberal consideration will also be given in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contain narratives that support symptomatology at the time of service, or when any other evidence which may reasonably indicate that PTSD or a PTSD-related disorder existed at the time of discharge which might have mitigated the misconduct that caused the under other than honorable conditions characterization of service. This guidance in not applicable to cases involving pre-existing conditions which are determined not to have been incurred or aggravated while in military service.

Conditions documented in the 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 PTSD or PTSD related conditions 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 under other than honorable conditions characterization of service. Correction boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD or PTSD-related conditions as a causative factor 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. Correction Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct.

8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable and a change to the narrative reason for his discharge. The applicants record of service, and the issues and documents submitted with his application were carefully reviewed.

The record confirms that the applicants discharge was appropriate because the quality of his service was not consistent with the Army’s standards for acceptable personal conduct and performance of duty by Army officers. It brought discredit on the Army and was prejudicial to good order and discipline. The applicant diminished the quality of his service below that meriting an honorable discharge.

The applicant provided no corroborating evidence demonstrating that either the command’s action was erroneous or sufficient evidence that his service mitigated the unacceptable conduct or poor duty performance, such that he should have been retained on Active Duty. Further, the applicants record contains no evidence of arbitrary or capricious actions by the command.

The applicant contends the discharge was unjust because the underlying allegations were false and the Government errored in discharging him. However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he may have been unjustly discharged. The applicants statements alone do not overcome the governments presumption of regularity and no additional corroborating and supporting documentation or further sufficient evidence has been provided with the request for an upgrade of the discharge.

In consideration of the applicant’s service accomplishments and quality of his service prior to the incidents misconduct and his post-service accomplishments, the Board can find that his complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service.

The applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives. The narrative reason specified by AR 635-5-1 for a discharge under AR 600-8-24, chapter 4, paragraphs 4-2b and 4-24a(1), is Unacceptable Conduct, and the separation code is BNC. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation.

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.

9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.

a. The applicant submitted no additional documents or contentions.

b. Witness(es) / Observer(s): None

10. BOARD DETERMINATION: In a personal appearance hearing conducted at Warner Robins, GA, on 17 November 2016, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable.

11. BOARD ACTION DIRECTED:

a. Issue a New DD-214: No

b. Change Characterization to: No Change

c. Change Reason to: No Change

d. Change SPD / RE Code to: No Change

e. Restore (Restoration of) Grade to: NA

AUTHENTICATING OFFICIAL:

COL, US ARMY
Presiding Officer
Army Discharge Review Board

Legend:
AWOL – Absent Without Leave GD – General Discharge NCO Noncommissioned Officer SCM – Summary Court Martial
BCD – Bad Conduct Discharge HS – High School NIF – Not in File SPCM – Special Court Martial
BH Behavioral Health HD – Honorable Discharge NOS Not Otherwise Specified SPD – Separation Program Designator
CG – Company Grade Article 15 IADT – Initial Active Duty Training OAD – Ordered to Active Duty TBI Traumatic Brain Injury
CID – Criminal Investigation Division MP Military Police OMPF – Official Military Personnel File UNC – Uncharacterized Discharge
ELS Entry Level Status MST Military Sexual Trauma PTSD Post-Traumatic Stress Disorder UOTHC – Under Other Than Honorable Conditions
FG – Field Grade Article 15 NA – Not applicable RE – Reentry VA Veterans Affairs
ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE
AR20160012633

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