1. Applicant's Name: a. Application Date: 5 January 2017 b. Date Received: 23 January 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of her general (under honorable conditions) discharge to honorable and a narrative reason change. The applicant seeks relief contending, in effect, she was retaliated against after expressing the unwanted sexual harassment and assault that was done to her by her superior, while serving on Active Duty. She was unjustly penalized after expressing what was going on. Instead of helping her or the situation, she received negative counselings to mask the real problem, which led to her being discharged for a pattern of misconduct. Per the Board's Medical Officer, based on the information available for review at the time, there was a nexus between a behavioral health or medical condition and the misconduct, which led to the applicant's separation from the Army. Military and medical records are void of information regarding a sexual assault; however, there is evidence of harassment and unfair treatment from members in her command. She also had an in-service diagnosis of Adjustment Disorder with Depression; however symptoms most likely met criteria for Persistent Depressive Disorder (Dysthymia). She also had a Rule Out PTSD diagnosis due to chronic childhood trauma and there was a diagnosis of Tuberculosis and other medical ailments. Because the combination of behavioral health conditions (Depression and childhood sexual abuse) and medical (Tuberculosis) conditions, can often be associated with anger, irritability, and mood lability, there is a nexus between this applicant's misconduct (disrespect) and her behavioral health symptoms. The record indicates the applicant had a prior records review in March 2014. In a personal appearance hearing conducted at Arlington, VA on 12 June 2017, and by a 5 - 0 vote, after carefully examining the applicant's record of service during the period of enlistment under review, the Board determined the characterization of service was too harsh based on the overall length and quality of the applicant's service, severe family matters and the matters surrounding her discharge. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to misconduct (minor infractions), with a corresponding SPD Code of JKN. This action does not entail a change to the reentry eligibility (RE) code. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Pattern of Misconduct / AR 635-200 / Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 4 May 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 24 February 2011 (2) Basis for Separation: The applicant was informed of the following reasons: disrespected an NCO on divers occasions; and, disobeyed an NCO on two occasions. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 24 February 2011 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 18 March 2011 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 January 2010 / 3 years b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 93 c. Highest Grade Achieved / MOS / Total Service: E-3 / 92A10, Automated Logistical Specialist / 4 year, 4 months, 24 days d. Prior Service / Characterizations: RA, 11 January 2007 - 17 March 2009 / HD USARCG, 18 March 2009 - 27 January 2010 / NA e. Overseas Service / Combat Service: Alaska / None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 7 December 2010, for disrespectful language toward an NCO (23 November 2010) and disobeyed a lawful order (23 November 2010). The punishment consisted of a reduction to E-2; forfeiture of $378 pay; and, extra duty and restriction for 14 days. CG Article 15, dated 12 April 2011, for willfully disobeying a lawful order (25 March 2010) and for disrespectful deportment toward a NCO (25 March 2010). The punishment consisted of a reduction to E-2 (suspended); forfeiture of $488 pay (suspended); and, extra duty and restriction for 14 days. Letter, dated 8 March 2011, from the applicant's brigade commander to the Honorable J M, Representative in Congress, reflects the applicant filed an Equal Opportunity (EO) complaint against an NCO in her unit for sexual assault, sexual harassment, and for a request for transfer to another unit. The findings of the EO investigation determined the allegations to be unfounded. The brigade commander stated the applicant's pending separation from the Army was a result of continued patterns of misconduct. Numerous Developmental Counseling Forms for disrespect towards an NCO; insubordinate conduct; provoking speeches or gestures; substandard performance; and, intent to separate from service. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Behavioral Health Evaluation, dated 3 February 2011, reflects the applicant was mentally responsible with a clear thinking process and had the mental capacity to understand and participate in the proceedings. The applicant was diagnosed with (Axis I) Occupation. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; five character statements; and a response to a Congressional inquiry. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. Paragraph 14-12b addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, pattern of misconduct, 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." 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of her general (under honorable conditions) discharge to honorable and a change to the narrative reason for separation. The applicant's record of service, the issues and documents submitted with her application were carefully reviewed. The record confirms that the applicant's discharge was appropriate because the quality of her service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance, such that she should be retained on active duty. The applicant contends the narrative reason for the discharge should be changed. However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern Of Misconduct," and the separation code is "JKA." Army Regulation 635-5, 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, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends that the circumstances surrounding the events that led to her discharge, were retaliation against her, after she expressed the unwanted sexual harassment and assault by her superior. However, 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 character of the applicant's discharge is commensurate with her overall service record. Further, the record does not contain and the applicant has not provided any evidence to support her contention that she was a victim of retaliation. Additionally, the applicant provided evidence which reflects her allegations of sexual harassment were unfounded and that the basis for her discharge was a pattern of misconduct. The third party statements provided with the application speak highly of the applicant's performance. They all recognize her potential as a Soldier; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 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 testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted no additional documents. b. The applicant presented no additional contentions. c. Witness(es) / Observer(s): None 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 12 June 2017, and by a 5 - 0 vote, after carefully examining the applicant's record of service during the period of enlistment under review, the Board determined the characterization of service was too harsh based on the overall length and quality of the applicant's service, severe family matters and the matters surrounding her discharge. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to misconduct (minor infractions), with a corresponding SPD Code of JKN. This action does not entail a change to the reentry eligibility (RE) code. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Misconduct (Minor Infractions) d. Change Authority to: AR 635-200, Chapter 14-12a e. Change SPD/RE Code to: Change SPD to JKN / No change to RE code f. Restore Grade to: No Change Authenticating Official: 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 AR20170001752 4