1. Applicant's Name: a. Application Date: 28 June 2019 b. Date Received: 5 July 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is under General (Under Honorable Conditions). The applicant requests an upgrade to Honorable. The applicant seeks relief contending, in effect, while he was in the Army he was raped. This effected his mental status and his ability to be a Soldier. He is deeply shameful of his actions and has always given his full commitment. In a records review conducted on 9 February 2022, 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, the circumstances surrounding the discharge (Personality Disorder, Anxiety Disorder NOS, Adjustment Disorder, and PTSD due to MST), and post-service accomplishments. 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, Chapter 15, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF. 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: 18 July 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 7 November 2017 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 9 August 2017, the applicant was disrespectful towards a Commissioned Officer by gesturing with his finger for him to wait in order to complete a personal phone call. On or about 9 August 2017, while of staff duty, without authority, the applicant went from his watch to make a personal phone call. On or about 9 August 2017, the applicant was derelict in the performance of his duties in that he willfully failed to stay awake on Staff Duty, as it was his duty to do so. On or about 10 August 2017, the applicant was derelict in the performance of his duties in that he willfully failed to stay awake on Staff Duty, as it was his duty to do so. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 16 November 2017 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: On 27 November 2017, the separation authority directed the applicant be separated, but that the separation action be suspended for a period of 12 months. On 27 June 2018, the separation authority vacated the suspension and directed the applicant be separated with a general (under honorable conditions) characterization of service. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 October 2015 / 3 years, 20 weeks b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 91 c. Highest Grade Achieved / MOS / Total Service: E-3 / 19K10, M1 Armor Crewman / 2 years, 9 months, 6 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Summarized Article 15 dated, 19 September 2017, reflects the applicant received non-judicial punishment for, on or about 9 August 2017, for without authority, go from his watch to make a personal phone call with intent to abandon the same; on or about 9 August 2017, for behaving himself with disrespect towards CPT MC by gesturing with his finger for him to wait in order to complete a personal phone call; on or about 9 August 2017, for being derelict in the performance of his duties in that he willfully failed to maintain staying awake, as it was his duty to do so; and on or about 10 August 2017, for being derelict in the performance of his duties in that he willfully failed to maintain staying awake on Staff Duty. The punishment consisted of extra duty and restriction for 14 days and an oral reprimand. On 27 June 2018, the separation authority vacated suspension of the applicant's separation due the applicant failing to obey a lawful order on or about 1 May 2018, for being disrespectful to SSG W, by making obscene gesture to him in the presence of other NCOs and recklessly driving a motor vehicle on Fort Carson. The applicant was counseled on numerous occasions for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: A Report of Mental Status Evaluation, dated 1 November 2017, reflects the applicant was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to participate in any administrative proceedings. The applicant was diagnosed with Personality Disorder, unspecified. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, DD Form 214. 6. POST SERVICE ACCOMPLISHMENTS: None. 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), 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) 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. (5) 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. (6) 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. (7) Paragraph 14-12c prescribes 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. 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's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable. The applicant contends he is deeply shameful of his actions and has always given his full commitment. The record confirms the applicant's 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 contends while he was in the Army he was raped which affected his mental ability to be a Soldier. A search of the Army criminal file indexes revealed no records pertaining to the applicant. A Review of the applicant's AMHRR contains documentation that supports a diagnosis of in- service depression. A careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. The record shows that on 1 November 2017, the applicant underwent a mental status evaluation, which reflects the applicant could understand and participate in administrative proceedings and appreciate the difference between right and wrong. The applicant's chain of command determined that he knew the difference between what was right and wrong as indicated by the mental status evaluation. 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 the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation. The applicant has a Personality Disorder with additional in-service diagnoses of Anxiety Disorder NOS and Adjustment Disorder. The applicant reported being both a perpetrator and victim of MST. The applicant is currently service connected for PTSD due to MST. (2) Did the condition exist or experience occur during military service? Yes. The applicant held in-service diagnoses of Personality Disorder, Anxiety Disorder NOS and Adjustment Disorder. The applicant reported being both a perpetrator and victim of MST. The applicant is currently service connected for PTSD due to MST. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor determined that the medical condition or experience does mitigate the basis of separation given the nexus between trauma and difficulty with authority. (4) Does the condition or experience outweigh the discharge? Yes. The Board concurred with the opinion of the Board's Medical Advisor, a voting member, that mitigating BH illnesses of Personality Disorder, Anxiety Disorder NOS and Adjustment Disorder are often associated with the applicant's reason for discharge of disrespect and dereliction of duty for the reasons listed in (3) above. As a result, the ADRB applied liberal consideration and found that the BH conditions outweighed the basis for separation. b. Response to Contention(s): (1) The applicant contends being raped while on active duty which affected the mental ability to serve. The Board determined that this contention was valid and voted to upgrade the characterization of service due to Personality Disorder, Anxiety Disorder NOS and Adjustment Disorder mitigating the applicant's disrespect and dereliction of duty charges. (2) The applicant contends being fully committed to service. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's BH illnesses of Personality Disorder, Anxiety Disorder NOS and Adjustment Disorder fully outweighing the applicant's disrespect and dereliction of duty bases for separation. c. The Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (Personality Disorder, Anxiety Disorder NOS, Adjustment Disorder, and PTSD due to MST), and post-service accomplishments. 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, Chapter 15, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant had a BH conditions of Personality Disorder, Anxiety Disorder NOS, Adjustment Disorder, and PTSD due to MST which mitigated the applicant's misconduct of disrespect and dereliction of duty. Thus the prior characterization is no longer appropriate. (2) The Board voted to change the applicant's narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 4. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Secretarial Authority / JFF d. Change RE Code to: No Change e. Change Authority to: AR 635-200, Chapter 15 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 AR20190011018 1