1. Applicant's Name: a. Application Date: 17 December 2018 b. Date Received: 26 December 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under honorable conditions) discharge to honorable and to change the narrative reason for discharge and its corresponding codes. The counsel, on behalf of the applicant, seeks relief contending in pertinent part and in effect, the applicant was diagnosed with service/combat- connected PTSD; therefore, there is the presumption of its connection to any alleged misconduct, and equity and propriety demand a relief. (The counsel-authored brief provided Statement of Facts (timeline of sequence of events.) The counsel asserts that an act or multiple acts of sexual harassment were committed against the applicant by the company commander, CPT D., that upon voicing the concerns, was retaliated against, in violation of the Military Whistleblower Protection Act and the current Policy on Sexual Harassment-had those policies been enforced at the time, it likely would have prevented separation. The discharge was improper, inequitable, and the resulting injustice, because the command's actions were arbitrary, capricious and erroneous, in light of the events leading to separation, the applicant's substantial contribution during service as a high caliber Soldier, including contributions since discharge. The applicant was unjustly hindered at furthering advancement in a career field. The Article 15 documentation clearly shows the command was reaching for anything to prosecute the applicant for following allegations and participation in the investigation against the company commander. The dates of the offenses occurred beginning of the year, while the imposition of the Article 15, a mechanism for speedy resolution and disposition of charges did not occur until immediately after the applicant's allegations. The applicant has suffered great unjustifiable embarrassment and malicious prosecution of the alleged misconduct in response to allegations against the command. Years have passed, but the issue is continuing to taint the applicant's name and causing great distress and embarrassment. Since discharge, the applicant flourished in the legal field-earning a degree in legal studies, and seeking to attend law school and serving in public office, but the current discharge inhibits the applicant's ability to attend law school and service in public office. The applicant also requests the removal of the investigation and Article 15 punishment, including restoring the rank of sergeant. Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV), notes indicate no BH diagnoses while on active duty. Post-service, the applicant has a 30% service-connected rating from the VA for PTSD and Major Depressive Disorder. In summary, although the applicant has a diagnosis of PTSD, it is not mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 3 May 2019, 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: Pattern of Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 25 February 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 11 February 2008 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant had been counseled on numerous occasions about her misconduct and had been punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for her misconduct. Her acts of misconduct ranged from failing to be at her appointed place of duty at the prescribed time on four occasions, disrespecting a superior commissioned officer, being derelict in the performance of her duty, and making a false official statement on two occasions. It was in the best interest of the US Army that she be separated from the service, because her pattern of misconduct was not in keeping with the high standards that it took to be a Soldier in the US Army. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 13 February 2008 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 2 February 2008 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 December 2005 / 4 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 108 c. Highest Grade Achieved / MOS / Total Service: E-5 / 27D10, Paralegal Specialist / 4 years, 9 months, 19 days d. Prior Service / Characterizations: RA (7 May 2003 to 30 November 2005) / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (28 September 2006 to 15 December 2007) f. Awards and Decorations: ARCOM-2; AAM; AGCM; NDSM; ICM; GWOTSM; KDSM; ASR; OSR-2; CAB g. Performance Ratings: 1 January 2006 thru 31 December 2006, Among the Best h. Disciplinary Action(s) / Evidentiary Record: Negative counseling statements for failing to go to her appointed place of duty at the prescribed time on numerous occasions; being disrespectful towards a superior commissioned officer; failing to obey an order or regulation; and being derelict in the performance of her duties. FG Article 15, dated 4 December 2007, for failing to go to her appointed place of duty at the prescribed time on four separate occasions on 5 April 2007, 13 April 2007, 13 July 2007, and 20 July 2007, behaving disrespectful towards MAJ J.F., being derelict in the performance of her duties on 25 October 2007, making false official statements on two separate occasions on 22 October 2007, and 27 October 2007, and wrongfully endeavoring to influence a witness testimony on 22 October 2007. The punishment consisted of a reduction to E-4, forfeiture of $1,039, and 45 days of extra duty (suspended). Memorandum, dated 22 October 2007, with its associated documents (numerous sworn statements), indicates an appointment of an investigating officer, a Commander's Inquiry, to investigate allegation made by SGT R. against company commander, CPT D. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Applicant's documentary evidence: VA letter, dated 9 May 2017, indicates the applicant was assigned 30 percent for PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 17 December 2018, and attorney-authored brief with list of enclosures (attachments) ending with the applicant-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: The counsel on behalf of the applicant states, in effect, that since the applicant's discharge, she flourished in the legal field-earning a degree in legal studies, and seeking to attend law school and serving in public office. Her documentary evidence shows she earned a Bachelor of Science and Associate of Arts Degrees, and Paralegal and Legal Assistant certificate. 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, paragraph 14-12b, pattern of misconduct. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKA" will be assigned an RE Code of 3. National Defense Authorization Act 2017 provided 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) or Traumatic Brain Injury (TBI) in connection with combat or sexual assault or sexual harassment as a basis for discharge review. Further, it provided 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; as a basis for the discharge. In August 2017, the Office of the Under Secretary of Defense for Personnel and Readiness provided further clarifying guidance 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. 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of her general (under honorable conditions) discharge to honorable and to change the narrative reason for her discharge and its corresponding codes. The applicant's available record of service, and 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. By the serious incidents of misconduct, the applicant knowingly risked a military career and marred the quality of her service that ultimately caused her discharge from the Army. 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 have been retained on Active Duty. The applicant's numerous contentions that her discharge was unjust because of the cited impropriety and inequitable issues involved in the process of her separation. 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 her issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that she was unjustly discharged. The applicant's statements alone do not overcome the government's 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 and to change the narrative reason for his discharge. The applicant contends she was diagnosed with service/combat-connected PTSD; therefore, presenting the presumption of its connection to any alleged misconduct, was carefully considered. A careful review of the available record and the applicant's documentary evidence indicates the notable service-connected post-traumatic stress disorder symptoms existed, and the applicant contends they were contributing factors that led to her misconduct. If the Board determines the applicant's behavioral health issues were significant contributing factors to her misconduct, it can grant appropriate relief by changing the reason for separation and/or the characterization of service. In consideration of the applicant's service accomplishments and quality of her service prior to the incidents of misconduct, and her post-service accomplishments, the Board can find that her complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of her characterization of service and to change the narrative reason for her discharge. The Army Discharge Review Board is authorized to consider post-service factors in the re- characterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. 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. The applicant requests to change the reason for her separation and its corresponding codes; however, the narrative reason for her separation is governed by specific directives and as approved by the separation authority. The narrative reason specified by AR 635-5-1 for a discharge under Chapter 14, paragraph 14-12b is "Pattern of Misconduct," and the separation code is JKA. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. Insofar as changing the reentry code, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of 3. There are no basis upon which to grant a change to the reason or to the RE code. An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist. If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist. Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. The applicant requests that her rank be restored and the removal of the investigation and Article 15. The Army Discharge Review Board is not empowered to restore former Service member's grade or rank, nor a removal of an investigation or an Article 15 of a former Service member. The Board may only change the characterization or reason for discharge. If an applicant believes there is an error or injustice in her discharge, she may make an application to the Army Board for Correction of Military Records, using DD Form 149, which can be obtained online or from a Veterans Service Organization. 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 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. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 3 May 2019, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Issue a New Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code 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 AR20190000094 4