1. Applicant's Name: a. Application Date: 11 November 2019 b. Date Received: 27 December 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, the discharge was based on incidents that occurred while dealing with domestic abuse and being physically and sexually abused. The applicant reports being an outstanding Soldier until the abuse started. The applicant prefers to not explain the sexual trauma, but states it led to patterns of misconduct. The applicant states the command demanded the attendance at formation after being physically assaulted for the purpose of embarrassment. The applicant states assistance was requested but was not received. The applicant states help was also sought from JAG, but no guidance was rendered. The applicant states only the misconduct was used in the discharge and not the promotions and medals. In a records review conducted at Arlington, VA on 30 April 2021, and by a 5-0 vote, the Board determined the discharge is inequitable based on the circumstances surrounding the discharge (PTSD, MST, IPV), and prior period of honorable service. 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. 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 / Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 16 February 2005 c. Separation Facts: (1) Date of Notification of Intent to Separate: 16 December 2004 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant had received two Company Grade Article 15s, dated 15 June 2004 and 21 September 2004, for Failure to Report, Disrespect to a Noncommissioned Officer, and Disobeying an Order. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 22 December 2004 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 24 January 2005 / General, Under Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 November 2003 / 3 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 81 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92F10, Petroleum Supply Specialist/ 3 years, 11 months, 7 days d. Prior Service / Characterizations: RA, 21 February 2001 - 18 November 2003 / HD e. Overseas Service / Combat Service: Korea/ none f. Awards and Decorations: Presidential Unit Citation, NDSM, GWOTSM, KDSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: An Incident Report for Simple Battery was made against the applicant on 21 January 2004, for an incident involving an ex-boyfriend accusing the applicant of threatening him with a knife and attempting to cut his vehicle tires. An Incident Report for Criminal Trespassing was made against the applicant on 22 January 2004, for scratching an ex-boyfriend's car. CG Article 15, dated 15 June 2004, for failing to go at the prescribed time to place of duty on or about 11 December 2003; on or about 12 March 2004; and on or about 2 April 2004. Punishment consisted of reduction to the grade of E-3 and forfeiture of $328.00 per month for one month. CG Article 15, dated 1 September 2004, for failing without authority to go at the prescribed time to appointed place of duty on or about 29 July 2004 (2 occasions), on or about 11 August 2004, and on or about 12 August 2004; for on or about 16 August 2004, being disrespectful to a noncommissioned officer; and on or about 16 August 2004, failing to obey an order. Punishment consisted of reduction to the grade of E-2 and forfeiture of $334.00 per month for one month. A Report of Mental Status Evaluation, dated 13 October 2004, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL) Status," effective 15 October 2004 and from "AWOL" to PDY," effective 3 November 2004 i. Lost Time / Mode of Return: AWOL 18 days, 15 October 2004 - 2 November 2004, j. Diagnosed PTSD / TBI / Behavioral Health: PTSD, IPV, MST, MDD, Adjustment Disorder 5. APPLICANT-PROVIDED EVIDENCE: 2 DD Forms 293 6. POST SERVICE ACCOMPLISHMENTS: None submitted with 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). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of "3." 8. DISCUSSION OF FACT(S): The applicant requests upgrade of the General, under honorable conditions discharge to honorable. The applicant's available record of service, the issues and documents submitted with the application were carefully reviewed. The record confirms the applicant's discharge was appropriate because the quality of her 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. By the pattern of misconduct, the applicant diminished the quality of her service below that meriting an honorable discharge at the time of separation. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance, such that she should have been retained on Active Duty. The applicant contends the discharge was based on incidents that occurred while dealing with domestic abuse and being physically and sexually abused. The record shows that on 13 October 2004, the applicant underwent a mental status evaluation, which indicates the applicant was mentally responsible and could understand the difference between right and wrong. It appears, the applicant's chain of command determined that the applicant was mentally responsible as indicated by the mental status evaluation. The applicant contends help was sought from JAG and the command; however, the command did things to cause embarrassment. However, the applicant had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that the applicant ever sought such assistance before committing the misconduct which led to the separation action under review. Further, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant's discharge is commensurate with her overall service record. The applicant contends there was good service and awards were received. 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 is to be commended for these accomplishments. 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 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 applicant is post-service connected for PTSD related to IPV and MST. (2) Did the condition exist or experience occur during military service? Yes. The applicant experienced MST and IPV in-service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. Based on liberal consideration, and nexus between PTSD and avoidance and difficulty with authority, the basis for separation is mitigated. (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 MST/PTSD/IPV are often associated with avoidance behaviors and trouble with authority. As a result, the ADRB applied liberal consideration and found that the BH conditions outweighed the cause for separation. b. Response to Contentions: (1) The applicant contends the discharge was based on incidents that occurred while dealing with domestic abuse and being physically and sexually abused. The Board determined this contention was valid and granted relief based off their findings. (2) The applicant contends help was sought from JAG and the command; however, the command did things to cause embarrassment. The Board considered this contention in its decision-making. (3) The applicant contends there was good service and awards were received. 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 is to be commended for these accomplishments. c. The Board determined the discharge is inequitable based on the circumstances surrounding the discharge (PTSD, MST, IPV), and prior period of honorable service. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's MST/IPV/PTSD mitigated the absenting and trouble with authority she for which she was discharged. Thus the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Secretarial Authority under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JFF. (3) The Board voted to change the RE code to RE-1. 10. 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: RE-1 e. Change Authority to: AR 635-200, paragraph 5-3 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 AR20200000328 3