1. Applicant's Name: a. Application Date: 28 August 2019 b. Date Received: 3 September 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, an inappropriate relationship led to the separation and being young the applicant did not fully understand the consequences. The applicant states there was honorable service including a deployment to Iraq. The applicant fears the discharge will hinder the ability to get into Law School and it also prevents access to the GI Bill. The applicant reports being married with children, graduating in the spring of 2022 with a Bachelor's Degree in Criminal Justice, volunteering with a mentor program, and applying to Law School. In a records review conducted on 1 April 2022, and by a 3 - 2 vote, the majority of the Board determined the discharge is inequitable based on the applicant's quality of service, combat service, the circumstances surrounding the discharge (being a victim of IPV), 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 to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions) with a corresponding separation code of JKN. 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: Pattern of Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 27 May 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 12 May 2010 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant received a summarized Article 15 on 15 July 2009, for visiting a male noncommissioned officer's Containerized Housing Unit which was prejudicial to good order and discipline in the armed forces; On 20 July 2009, a Commander's Inquiry Investigation found that a perception of an inappropriate relationship and favoritism between the applicant and the said male staff sergeant existed within the unit; In July of 2009, a No Contact Order was issued to the applicant and the said male staff sergeant by the company commander; On 31 August 2009, the applicant was issued a Letter of Concern from the Battalion Commander concerning the behavior which led to the unit to perceive that an inappropriate relationship existed between the applicant and the male staff sergeant; On 7 December 2009, a Commander's Inquiry found that the applicant violated the No Contact Order by making and receiving phone calls from the said male staff sergeant and that the applicant was having an inappropriate relationship with the male staff sergeant; On 3 March 2010, the applicant received a FG Article 15 for violating the No Contact Order and for having an inappropriate relationship with the said male staff sergeant; and On 30 April 2010, the applicant received a Record of Supplementary Action under Article 15, UCMJ for violating the No Contact Order by applying for a loan with the said male staff sergeant. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 13 May 2010 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 18 May 2010 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 August 2007 / 6 years b. Age at Enlistment / Education / GT Score: 18 / GED / 105 c. Highest Grade Achieved / MOS / Total Service: E-4 / 31B10, Military Police / 2 years, 9 months, 5 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq, (27 October 2008 - 19 October 2009) f. Awards and Decorations: ICM-CS-2, ARCOM, NDSM, GWOTSM, ASR, OSR, Marksmanship Qualification Badge-MKS-Pistol Bar g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: A Summarized Article 15, dated 15 July 2009, reflects the applicant violated a lawful general order on or about 1 July 2009, by wrongfully entering SGT A. F's Containerized Housing Unit. The punishment consisted of extra duty for 14 days and an oral reprimand. A Letter of Concern, dated 31 August 2009, reflects the Letter of Concern was issued as the result of a recent Commander's Inquiry to determine whether there had been an inappropriate relationship based on sexual misconduct between the applicant and SSG D.E. While the findings of the investigation indicated a professional relationship, it was also noted that there was a lapse of good judgement brought on by complacency. Several instances of contact between the applicant and SSG D.E. were noted where normal team cohesion could not be justified. These instances allowed for the perception of favoritism and an inappropriate relationship to develop within the remaining member of the unit. FG Article 15, dated 3 March 2010, reflects the applicant violated a lawful general regulation by wrongfully compromising or appearing to compromise the integrity of supervisory authority or the chain of command by having an inappropriate relationship with SSG D.E. between on or about 5 November 2008 and on or about 1 February 2010, disobeyed a lawful order issued on or about 1 July 2009, by wrongfully receiving and making phone calls to SSG D.E's cellular phone between on or about 21 October 2009, and on or about 10 December 2009, violating a NO Contact Order. The punishment consisted of reduction to private/E-1; forfeiture of $723 pay per month for 2 months, suspended, to be automatically remitted if not vacated before 30 August 2010; and extra duty and restriction for 45 days. On 30 April 2010, the suspension of the punishment of $723 pay per month for two months imposed on 3 March 2010, was vacated due to the applicant violating a No Contact Order by wrongfully applying for a loan with SSG D.E. on 23 April 2010. A Mental Status Evaluation, dated 6 May 2010, reflects the applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Personal Statement, DD Form 214 6. POST SERVICE ACCOMPLISHMENTS: 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) 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. (5) 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. (6) Paragraph 14-2b 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. (7) Paragraph 14-12a addresses minor disciplinary infractions, defined as a pattern of misconduct, consisting solely of minor military disciplinary infractions. 8. SUMMARY 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 contend an inappropriate relationship led to the separation; however, being young, the applicant did not fully understand the consequences. The record shows the applicant met entrance qualification standards to include age. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. The applicant states there was honorable service, including a deployment to Iraq. The applicant's service accomplishments and the quality of the service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant fears the discharge will hinder the ability to get into Law School and it also prevents access to the GI Bill. The Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. 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 applicant reports being married with children, graduating in the spring of 202 with a Bachelor's Degree in Criminal Justice, volunteering with a mentor program, and applying to Law School. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization 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. 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's self-statement outlines an abusive relationship which qualified as IPV. (2) Did the condition exist or experience occur during military service? Yes. The IPV relationship occurred in-service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor determined that the experience does partially mitigate the basis of separation. Given the applicant's self-statement, it is more likely than not the misconduct specific to the inappropriate relationship was driven by the older, high ranking individual who maintained control over the applicant with manipulation and various forms of abuse. However, the applicant's self-report indicates the incident of visiting another NCO was unrelated. (4) Does the condition or experience outweigh the discharge? Yes. The Board concurred with the opinion of the Board's Medical Advisor that IPV experience is often associated with rash acts of judgement. As a result, the ADRB applied liberal consideration and found that the cause for separation is partially mitigated by IPV for the reasons listed in (3) above. The applicant's offense of visiting a male noncommissioned officer's Containerized Housing Unit is not medically mitigated, as there is no nexus between these behaviors and the BH conditions listed. b. The applicant contends an inappropriate relationship led to the separation; however, being young, the applicant did not fully understand the consequences. Youthful indiscretion does not excuse the misconduct. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. In this case, the majority of the Board voted to upgrade the characterization of service due to IPV mitigating the applicant's violation of a No Contact Order and for having an inappropriate relationship with a male staff sergeant; and violating a No Contact Order by applying for a loan with the said male staff sergeant. c. The majority of the Board determined the discharge is inequitable based on the applicant's quality of service, combat service, the circumstances surrounding the discharge (being a victim of IPV), and post-service accomplishments. d. Rationale for Decision: (1) The majority of the Board voted to change the applicant's characterization of service to Honorable because the applicant was a victim of IPV which mitigated the applicant's misconduct of having an inappropriate relationship with a male staff sergeant and violation a No Contact Order. Thus the prior characterization is no longer appropriate. (2) The majority of the Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (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: Yes b. Change Characterization to: Honorable c. Change Reason / SPD code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change e. Change Authority to: AR 635-200, paragraph 14-12a 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 IPV - Intimate Partner Violence 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 AR20190014351 7