1. Applicant's Name: a. Application Date: 4 March 2019 b. Date Received: 11 March 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is Under Other Than Honorable conditions. The applicant requests an upgrade to Honorable and a narrative reason change to Secretarial Authority. Counsel seeks relief for the applicant contending, in effect, the misconduct which led to the separation was due to a mental health condition and sexual harassment. Counsel contends the applicant used cocaine following deployment because of the energy it gave and to help with workouts. The applicant attempted suicide and was hospitalized for five days; however, the doctors decline to assign a psychiatric diagnosis. The applicant received a Summary Court-Martial for using cocaine in March 2004. In June 2004, the applicant reported being sexually harassed by the battalion commander. The matter was investigated and the commander was suspended from command. The applicant's separation packet is not in the Official Military Personnel File; however, it should have been permanently maintained. The applicant was evaluation by VA for post- traumatic stress disorder (PTSD); however, the psychiatrist did not find that the applicant suffered from PTSD. The psychiatrist did state the applicant had a disorder of mood instability which was present and treated prior to military service and the applicant met the diagnostic criteria for unspecified bi-polar and related disorder which existed prior to service. The psychiatrist also found the applicant had an in-service traumatic brain injury (TBI), although no impairment was found. In a records review conducted on 14 May 2021, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge (MST and PTSD diagnosis). 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 3. (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: 11 June 2004 c. Separation Facts: (1) DD Form 458 (Charge Sheet): NIF (2) Legal Consultation Date: NIF (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: NIF (5) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 March 2001 / 4 years b. Age at Enlistment / Education / GT Score: 25 / GED / 110 c. Highest Grade Achieved / MOS / Total Service: NIF / 55B, Ammunition Specialist / 3 years, 3 months, 3 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: NIF f. Awards and Decorations: AGCM, NDSM, ASR, GWOTSM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: A Narrative Summary from the Naval Medical Center, Portsmouth, VA, reflects the applicant was admitted psychiatric evaluation and admission following a suicide attempt on 9 January 2004 and discharged on 14 January 2004. The evaluation shows the applicant was diagnosed with alcohol dependence and cocaine abuse and borderline traits. The applicant found to be fit for duty and returned to command. Record of Trial by Summary Court-Martial, reflects the applicant was tried in a Summary Court- Martial on 19 March 2004. The applicant was found guilty of wrongful use of cocaine. The punishment consisted of reduction to private / E-1, forfeiture of $795.00 per month for one month and restriction for 30 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: An IG Report reflects, on 10 June 2004, the applicant reported the battalion commander had written very explicit letters to her while they were deployed and she had written letters back to him with a sexual overtone. The applicant reported she had stopped writing and felt as though he may be upset and would use his influence to exercise command influence. An investigation found evidence to support three of the four allegations and the commander was relieved of command. A VA Compensation and Pension Examination, dated 9 March 2018, reflects the applicant was diagnosed with unspecified bipolar and related disorder, existed prior to military service and was not exacerbated by military service and cocaine, opioid, and alcohol disorders, not due to military service. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Counsel's brief, DD Form 214, Enlistment Contract, AAM Certificate, Post Deployment Health Assessment, Letter from the Inspector General's office, DD Form 2329 (Record of Trial by Summary Court-Martial), Memo, Review of Trial Letter from the Department of Veteran Affairs (VA), medical documents, Kurta Memo, excerpt of Army Regulation (AR) 635-200. 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 Service member discharged from active military service within 15 years of the Service member'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 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) Chapter 5 provides for the basic separation of enlisted personnel for the convenience of the government. Paragraph 5-3 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memorandums. Secretarial separation authority is normally exercised on a case-by-case basis. (6) 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. 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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, In Lieu of Trial by Court-Martial. f. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of "4." 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable and a narrative reason change to Secretarial Authority. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant's record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. The applicant's record does contain a properly constituted DD Form 214, which was authenticated by the applicant's signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 10, by reason of In Lieu of Trial by Court-Martial, with a characterization of service of Under Other Than Honorable Conditions. The applicant's counsel contends a metal health condition mitigates the misconduct. The applicant's counsel contends the narrative reason for the discharge should be changed. The applicant contends sexual assault contributed to the misconduct which led to the separation. 9. 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) Medical documentation indicates the applicant has been diagnosed with two mitigating conditions/experiences: PTSD and MST (2) Did the condition exist or experience occur during military service? (YES) VA medical documentation indicates that applicant experienced of MST and development of PTSD occurred during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? (YES) Applicant's history of MST and diagnosis of PTSD mitigate her misconduct of wrongfully using cocaine. (4) Does the condition or experience outweigh the discharge? (YES) Applicant's history of MST and diagnosis of PTSD outweigh her discharge characterization. b. The ADRB determined that the applicant's characterization of service was inequitable based on the MST that occurred and PTSD diagnosis mitigating reason for discharge. c. The applicant's counsel contends a metal health condition mitigates the misconduct. Based on the information available for review at the time in the service record, the medical systems (AHLTA & JLV) notes indicate diagnoses of MST, Bipolar Disorder, Alcohol Dependence, Cocaine Abuse, Borderline traits. The applicant is 70% service connected for PTSD. Per the Board's BH Doctor, applicant has a BH diagnosis that is mitigating for the misconduct which led to separation from the Army. d. The applicant's counsel contends the narrative reason for the discharge should be changed. Based on applicant's documented MST experiences, the Board recommends changing the narrative reason to Secretarial Authority. e. The applicant contends sexual assault contributed to the misconduct which led to the separation. In accordance with Liberal Consideration guidance, the Board's BH Doctor determined that the applicant's MST is associated with use of illicit drugs and alcohol for self- medication and there is a nexus between her experience of MST and her drug use. f. The Board determined g. Rationale for Decision: (1) The board voted to change the applicant's characterization of service because the medical records detailed the misconduct that led to the separation as a result of MST experiences and diagnosed PTSD, mitigating reason for discharge. (2) The board voted to change the reason to Secretariat Authority because applicant experienced MST while serving in the Army. (3) The SPD code associated with Secretariat Authority is JFF. Because the applicant has a diagnosis for a disqualifying condition (bi-polar disorder) the Board voted to re-enlistment code remain as RE-3. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Issue a New Separation Order: Yes b. Change Characterization to: Honorable c. Change Reason to: Secretariat Authority d. Change Authority to: AR 635-200, paragraph 5-3 e. Change SPD / RE Code to: JFF / RE-3 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 NA - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Reentry 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 ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20190005104 1