1. Applicant's Name: a. Application Date: 7 November 2018 b. Date Received: 14 December 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of her under other than honorable conditions discharge to general (under honorable conditions). The applicant seeks relief contending, in effect, she is unable to receive certain benefits, which would enhance her life, such as the GI Bill to further her education. The applicant states, she was being sexually harassed by MSG T, who had fought to force the applicant out of the military before the applicant could report him. The decision for the other than honorable discharge was against the recommendations of her LTC's and MAJ's recommendation for a General (Under Honorable Conditions). 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 diagnoses of Somatization Disorder and Personality Disorder. The VA has also diagnosed the applicant with MST PTSD. The applicant is service connected for Neuroses for treatment only. In summary, the applicant has a BH diagnosis that is partially mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 6 November 2020, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length of service, the circumstances surrounding the discharge (OBH and PTSD diagnosis), and homelessness. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF, and a change to the reentry eligibility (RE) code to 1. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason/Authority/Codes/Characterization: In Lieu of Trial by Court-Martial / AR 635- 200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 5 August 2009 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 1 June 2009, the applicant was charged with: Charge I: Six specifications of violating Article 86, UCMJ, for failing to go at the time prescribed to her appointed place of duty: 26 January 2009; 28 January 2009; 2 February 2009; 3 February 2009; 17 February 2009; and, 1 May 2009. Charge II: Violation of Article 89, UCMJ: The applicant did, at or near Fort McPherson, Georgia, on or about 23 January 2009, behave herself with disrespect toward LTC G. M., her superior commissioned officer, then known by her to be her superior commissioned officer, by not rendering the proper salute. Charge III: Violation of Article 91, UCMJ: The applicant did at or near Fort McPherson, Georgia, on or about 23 January 2009, was disrespectful in deportment toward SSG K. W., a superior noncommissioned officer, then known by the applicant to be a superior noncommissioned officer, who was then in the execution of his office, by making deliberate noises to express her displeasure after being told that she had to stay late to be counseled. Charge IV: Violation of Article 92, UCMJ: Specification 1: The applicant having knowledge of a lawful order issued by SSG G. A. to not drive her vehicle due to her driver's license being suspended, an order which it was her duty to obey, did, at or near Fort McPherson, Georgia; between on or about 6 February 2009 and 11 February 2009, fail to obey the same by wrongfully driving her vehicle. Specification 2: The applicant having knowledge of a lawful order issued by SSG G. A. to not drive her vehicle due to her driver's license being suspended, an order which it was her duty to obey, did, at or near Fort McPherson, Georgia, on or about 18 February 2009, fail to obey the same by wrongfully driving her vehicle. Charge V: Violation of Article 107, UCMJ: The applicant did, at or near Fort McPherson, Georgia, on or about 17 February 2009, with intent to deceive, make to SSG K. W., an official statement, lo wit: that she came in to the north portal between 0815 and 0845 and immediately got sick and then returned to her barracks room, which statement was totally false and was then known by the applicant lo he so false. Charge VI: Violation of Article 112a, UCMJ: Specification 1: The applicant did, at or near Fort McPherson, Georgia, between on or about 7 February 2009 and 6 March 2009, wrongfully use marijuana. Specification 2: The applicant did, at or near Fort McPherson, Georgia, between on or about 7 March 2009 and 30 March 2009, wrongfully use marijuana. (2) Legal Consultation Date: 8 July 2009 (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date/Characterization: 16 July 2009 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 April 2008 / 3 years, 2 weeks b. Age at Enlistment / Education / GT Score: 20 / GED / 89 c. Highest Grade Achieved / MOS / Total Service: E-3 / 42A10, Human Resources Specialist / 2 years, 3 months, 24 days d. Prior Service / Characterizations: USAR, 2 May 2007 - 8 April 2008 / NIF IADT, 25 July 2007 - 8 December 2007 / UNC (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. Electronic Copy of DD Form 2624, dated 9 April 2009, reflects the applicant tested positive for THC 319 (marijuana), during an Command Directed (CO) urinalysis testing, conducted on 30 March 2009. Electronic Copy of DD Form 2624, dated 21 March 2009, reflects the applicant tested positive for THC 117 (marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 6 March 2009. Georgia Uniform Traffic Citation, Summons and Accusation, reflects the applicant was charged with the offense of Driving while license suspended. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; two Separation Recommendation Memoranda. 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 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Army policy states that although an honorable or general (under honorable conditions) discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 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 under other than honorable conditions discharge to honorable conditions. The applicant's record of service, the issues and documents submitted with her application were carefully reviewed. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, in consultation with legal counsel voluntarily requested, in writing, a discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and she indicated she understood she could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veterans' benefits. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. Her record documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority at the time of discharge. The applicant contends the separation authority's decision did not follow the recommendations of the intermediate commanders. However, AR 635-200, chapter 2-2c, states the separation authority is not bound by the recommendations of the initiating or intermediate commander and has complete discretion to direct any type of discharge and characterization of service authorized by the applicable provisions of this regulation. The applicant contends that she was sexually harrased by members of her chain of command; however, she had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that she ever sought such assistance before committing the misconduct, which led to the separation action under review. Likewise, she has provided no evidence that she should not be held responsible for her misconduct. Accordingly, this argument is not sufficient to support her request for an upgrade of her discharge. The applicant contends that an upgrade of her discharge would allow educational benefits through the use of the GI Bill. However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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 6 November 2020, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length of service, the circumstances surrounding the discharge (OBH and PTSD diagnosis), and homelessness. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF, and a change to the reentry eligibility (RE) code to 1. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Secretarial Authority d. Change Authority to: AR 635-200, paragraph 5-3 e. Change SPD / RE Code to: JFF / RE-1 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 AR20190001064 6