1. Applicant's Name: a. Application Date: 8 January 2020 b. Date Received: 22 January 2020 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 misconduct which led to the separation was a direct result of a rape which occurred while serving on active duty. In a records review conducted on 6 May 2022, and by a 5-0 vote, the Board determined the discharge is inequitable based on the circumstances surrounding the discharge (OBHI and PTSD due to MST diagnoses). 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. The board determined the RE code was proper and equitable and voted not to change it. 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: Alcohol Rehabilitation Failure / AR 635-2-- / Chapter 9 / JPD / RE-4 / General, Under Honorable Conditions b. Date of Discharge: 12 October 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 8 June 2007 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 21 March 2007, the applicant was declared a rehabilitation failure by the Army Substance Abuse Program. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 30 July 2007 (5) Administrative Separation Board: The applicant voluntarily and unconditionally waived consideration of the case by an administrative separation board. (6) Separation Decision Date / Characterization: NIF / General (Under Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 June 2005 / 5 years b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 113 c. Highest Grade Achieved / MOS / Total Service: E-4 / 46R10, Broadcast Journalist / 6 years, 8 months, 6 days d. Prior Service / Characterizations: RA, 3 February 2003 - 7 May 2004 / HD (Concurrent Service) Deployment USAR, NIF e. Overseas Service / Combat Service: SWA / SWA, (7 April 2003 - 9 April 2004) f. Awards and Decorations: OSB-2, NDSM, ASR, ARCOTR, AFRM-M-Device, GWOTSM, GWOTEM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 14 November 2006, reflects the applicant failed to go at the prescribed time to the appointed place of duty on four separate occasions and failed to obey a lawful order on 27 October 2006. The punishment consisted of forfeiture of $400, suspend $200 of the forfeiture pf pay per month for 1 month to be automatically remitted if not vacated before 15 December 2006; extra duty for 14 days; and an oral reprimand. A Narrative Summary, reflects the applicant was admitted into the Substance Abuse Rehabilitation Program (SARP) on 5 March 2007 and was discharged on 21 March 2007. The applicant was diagnosed with alcohol dependence. The Narrative Summary reflects the reason for transition was due to the applicant's low readiness to change which interfered with treatment. It was recommended the applicant be discharged from treatment as a treatment failure. A CID Report of Investigation, dated 16 April 2007, reflects an investigation established probable cause to believe a sergeant committed the offense of rape and forced sodomy on the applicant while the applicant was inebriated on 3 February 2006 and the sergeant also committed the offense of indecent assault upon the applicant on 27 January 2006. A Report of Mental Status Evaluation, dated 18 May 2007, reflects the applicant had the mental capacity to understand and participate in the proceedings. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 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) Chapter 9 outlines the procedures for discharging individuals because of alcohol or other drug abuse. A member who has been referred to ASAP for alcohol or drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. Army policy states that an honorable or general, under honorable conditions discharge is authorized depending on the applicant's overall record of service. However, an honorable discharge is required if limited use information is used in the discharge process. 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 (AMHRR), the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable. The applicant contends the misconduct which led to the separation was a direct result of a rape which occurred while serving on active duty. A CID Report of Investigation, dated 16 April 2007, reflects an investigation established probable cause to believe a sergeant committed the offense of rape and forced sodomy on the applicant while the applicant was inebriated on 3 February 2006 and the sergeant also committed the offense of indecent assault upon the applicant on 27 January 2006. 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, applicant submissions and third-party statements, and found the applicant was diagnosed with Adjustment Disorder (DO), Reaction to Severe Stress, MST and PTSD, which, in the opinion of the Board's Medical Advisor, after applying liberal consideration, could potentially mitigate a discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the following conditions/experiences occurred during military service: MST, Adjustment DO, Reaction to Severe Stress and PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor opined that the applicant has a mitigating BH condition, PTSD due to MST. As there is an association between PTSD/MST and use of drugs and alcohol to self- medicate symptoms, there is a nexus between applicant's diagnoses of PTSD/MST and applicant's alcohol rehabilitation failure. (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. As a result, the ADRB applied liberal consideration and found that the applicant's PTSD due to MST outweighed the alcohol rehabilitation failure basis for separation. b. Response to Contention(s): The applicant contends the misconduct which led to the separation was a direct result of a rape which occurred while serving on active duty. The Board determined that this contention was valid and voted to upgrade the characterization of service due to PTSD/MST mitigating the applicant's alcohol rehabilitation failure basis for separation. c. The Board determined the discharge is inequitable based on the circumstances surrounding the discharge (OBHI and PTSD due to MST diagnoses). 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. The board determined the RE code was proper and equitable and voted not to change it. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant had PTSD due to MST which mitigated the applicant's misconduct of alcohol rehabilitation failure. 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 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: 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 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 AR20200003527 1