1. Applicant's Name: a. Application Date: 20 May 2019 b. Date Received: 28 May 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general (under honorable conditions). The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, as instructed in pertinent part by Department of Defense Instruction 1332.28 stipulating that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge the Army Discharge Review Board will consider the applicant for a possible upgrade to honorable. The applicant seeks relief contending, in effect, that she was wrongfully incarcerated from 5 January 2018 until 17 October 2018. She was released from the Army 23 May 2018, 6 months before her charges were dismissed by the Federal Government. The applicant is requesting help in resolving a matter of military injustice that has resulted in temporary homelessness, the struggle to provide for her children and despair. After more than 17 years of service to the United States Army, she has nothing to show; simply stated, she was detained for a crime she did not commit, found innocent and still persecuted through the Army actions. She did not receive anything from the Army, not even a plane ticket to leave Hawaii, her last duty station. How is it possible that she was detained and found innocent but eligible for VA Benefits? She is simply requesting the VA Benefits that every Soldier deserves and receives after years of service. In a records review conducted on 22 September 2021, and by a 3-2 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200 / Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 17 May 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The applicant was informed of the following reasons: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 November 2013 / Indefinite b. Age at Enlistment / Education / GT Score: 31 / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-6 / 92G20, Culinary Specialist / 17 years, 3 months, 28 days d. Prior Service / Characterizations: RA, 16 August 2000 to 26 November 2003 / HD RA, 27 November 2003 to 30 March 2005 / HD RA, 31 March 2005 to 10 June 2007 / HD RA, 11 June 2007 to 11 November 2013 / HD e. Overseas Service / Combat Service: Hawaii, Korea, SWA / Kuwait (19 January 2005 to 21 January 2006) and Afghanistan (1 October 2011 to 29 July 2012) f. Awards and Decorations: ARCOM-3, AAM-8, AGCM-5, NDSM, GWOTEM, GWOTSM, KDSM, ACM-CS-2, ASR, OSR-2, CAB g. Performance Ratings: 31 August 2013 to 2 January 2014, Marginal 2 January 2014 to 1 September 2014, Fully Capable 30 September 2014 to 30 January 2015, Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Memorandum for Commander, dated 20 September 2017 subject "Army Regulation 15-6 Investigation Findings and Recommendations, indicates on 1 August 2017, LTC D.J.Y., appointed an officer as an investigating officer pursuant to Army Regulation (AR) 15-6 to conduct an investigation into the facts and circumstances surrounding allegations that SSG T.R., inappropriately fraternized with a junior Soldier, was disrespectful towards a senior noncommissioned officer on numerous occasions, and had created a poor climate at the DFAC. After conducting a thorough investigation, it was determined by a preponderance of the evidence that the applicant committed fraternization as well as maltreatment towards junior Soldiers. Given the facts derived from the investigation exhibits, it was found by a preponderance of the evidence that the applicant fraternized with SPC B. but could not substantiated the allegation of disrespect to a NCO. Over the course of the investigation and given the facts previously stated, her actions further substantiated maltreatment of her subordinates. FG Article 15, dated 21 December 2017, for failing to go at the time prescribed to her appointed place of duty 21 July 2017, 15 September 2017, 25 October 2017, and 26 October 2017; being absent from his unit between 22 November 2017 and 3 December 2017 and between 4 December 2017 and 8 December 2017; on divers occasion between 2 July 2017 and 27 July 2017, violated a lawful general regulation by fraternizing with Specialist P.K.B, in violation of Article 92, UCMJ; with intent to deceive, made to First Sergeant R. R., an official statement, to wit: I am at Tripler." Or words to that effect, which statement was totally false, and was then known by her to be so false, in violation of Article 107, UCMJ; and with intent to deceive, making to First Sergeant R.R., an official statement, to wit: "my son was seen at the Schofield Barracks Acute Care Clinic by Dr. D.F., on 25 October 2017, "or words to that effect, which statement was false in that her son was not seen on 25 October 2017 at the Schofield Barracks Acute Care Clinic, and was then known by her to be so false, in violation of Article 107, UCMJ. The punishment consisted of reduction to E5, forfeiture of $1,616.00 pay per month for two months (suspended), and extra duty and restriction for 45 days. DA Form's 4187 (Personnel Action) changing the applicant's duty status from: Present for Duty (PDY) to Absent Without Leave (AWOL), effective 22 November 2017 Present for Duty (PDY) to Confinement; effective 3 January 2018 i. Lost Time / Mode of Return: Total lost time 154 days; 19 days (22 November 2017 to 10 December 2017) and 135 days (3 January 2018 to 17 May 2018). Documents completely supporting these periods of time lost were not found in the available records. j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 in lieu of DD Form 293; self-authored statement; exception to policy memorandum, dated 30 January 2019; court documents for the District of Hawaii reference "Stipulation and Order for Dismissal of Court 8 of the Second Superseding Indictment as to the Defendant T.R./Applicant," and counseling statement dated 28 December 2017. 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 Servicemember discharged from active military service within 15 years of the Servicemember'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 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. (7) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (8) Paragraph 14-12c, states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and non-waiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. 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 of her general (under honorable conditions) discharge. The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant's available AMHRR record of service, the issues and documents submitted with her application were carefully reviewed. The applicant's record is void of the facts and circumstances concerning the events which led to her discharge from the Army. However, the applicant's record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant's signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason of misconduct (serious offense), with a characterization of service of general (under honorable conditions). The applicant seeks relief contending that she was wrongfully incarcerated from 5 January 2018 until 17 October 2018. She was released from the Army 23 May 2018, 6 months before her charges were dismissed by the Federal Government. The applicant is requesting help in resolving a matter of military injustice that has resulted in temporary homelessness, the struggle to provide for her children and despair. After more than 17 years of service to the United States Army, she has nothing to show; simply stated, she was detained for a crime she did not commit, found innocent and still persecuted through the Army actions. She did not receive anything from the Army, not even a plane ticket to leave Hawaii, her last duty station. How is it possible that she was detained and found innocent but eligible for VA Benefits? The applicant's contentions were noted; a determination on whether these contentions have merit cannot be made because the facts and circumstances leading to the discharge are unknown. The burden of proof remains with the applicant to provide the appropriate documents such as the discharge packet or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration. If the applicant desires a personal appearance hearing, it will still be her responsibility to meet the burden of proof since the discharge packet is not available in the official record. The applicant expressed her desire for an upgrade of her discharge for the purpose of receiving the VA Benefits that every Soldier deserves and receives after years of service. It should be noted, 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. 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. The Board's Medical Advisor, a voting member, reviewed DoD and VA medical records and found in service diagnoses included Adjustment Disorder, PTSD with periods of dissociation, and Major Depressive Disorder (MDD). The applicant also reported two MSTs in- service, was the perpetrator of various child abuse incidents, and a potential victim on IPV. Post-service, the applicant is diagnosed with MDD and PTSD, combat and MDD, and service connected for PTSD. (2) Did the condition exist or experience occur during military service? Yes. The applicant held in-service diagnoses of Adjustment Disorder, PTSD, and MDD with MSTs. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. If the basis for separation is accepted, per liberal consideration, the applicant's service connected PTSD and MSTs mitigate the misconduct; FTR, AWOL, drug use, drug paraphernalia (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB's application of liberal consideration, the majority of the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the applicant's multiple FAP contacts in regards to child abuse and neglect outweighed her AD, PTSD, MDD, MST, and a potential victim of IPV diagnoses. b. Response to Contention(s): (1) The applicant requests an upgrade of her general (under honorable conditions) discharge. The applicant seeks relief contending that she was wrongfully incarcerated. She was released from the Army May 2018, 6 months before her charges were dismissed by the Federal Government. The applicant is requesting help in resolving a matter of military injustice that has resulted in temporary homelessness, the struggle to provide for her children and despair. The applicant's contentions were noted; a determination on whether these contentions have merit cannot be made because the facts and circumstances leading to the discharge are unknown. The burden of proof remains with the applicant to provide the appropriate documents such as the discharge packet or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration. If the applicant desires a personal appearance hearing, it will still be her responsibility to meet the burden of proof since the discharge packet is not available in the official record. (2) The applicant expressed her desire for an upgrade of her discharge for the purpose of receiving the VA Benefits that every Soldier deserves and receives after years of service. It should be noted, 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. c. The Board denied the request upon finding the separation was both proper and equitable. The majority of the Board determined that the documentation contained in the AMHRR, as well as evidence submitted by the applicant, and the available medical evidence did not support a finding that the applicant's discharge was improper or inequitable. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service because, despite applying liberal consideration with consideration to the applicant's Adjustment Disorder, PTSD, Major Depressive Disorder, MST, and a potential victim on IPV, the applicant did not supply sufficient independent corroborating evidence to support contentions. The length FAP contact with responses to child abuse and neglect did not have any mitigating circumstances or explanation for the Board's consideration. 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. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, and the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change 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 N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry 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 AR20190007683 1