1. Applicant's Name: a. Application Date: 12 May 2020 b. Date Received: 26 May 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable and a narrative reason change to "Under Secretarial Authority." The applicant seeks relief contending, in effect, that his discharge was directly related to impropriety under Don't Ask Don't Tell or other similar policy. The applicant request relief because a hostile work environment under a noncommissioned officer caused mental health conditions that impaired the applicant's performance. These conditions did not outweigh the severity of the discharge and had the applicant been retained these deficiencies would have corrected themselves through continued treatment. The applicant contends that although the command readily handed out punishments and half-solutions that didn't address the core issues, they never put in for the applicant to see a mental health professional or send the applicant to a sleep study. The applicant felt that this uncontrolled tardiness, multiple counseling statements and eventually Article 15 led to the applicant feeling ostracized and less than in the eyes of peers as they had no idea the issues the applicant was dealing with and instead thought of the applicant as undisciplined or lazy. b. Board Type and Decision: In a records review conducted on 17 May 2023, and by a 5- 0 vote, the Board determined the discharge is inequitable based on the applicant's Military Sexual Trauma outweighing the applicant's basis of separation - absent without leave; failing to go at the time prescribed to an appointed place of duty; failure to maintain grooming standards by not shaving; and failure to obey several direct orders from superior noncommissioned officers. 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: Unsatisfactory Performance / AR 635- 200 / Chapter 13 / JHJ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 14 September 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 17 August 2010 (2) Basis for Separation: The applicant was informed of the following reasons: for on 22 February 2010, being found guilty beyond a reasonable doubt, during a Company Grade Article 15 hearing of five specification of Article 86, absent without leave; failing to go at the time prescribed to an appointed place of duty on 9 December 2009, 18 December 2009, 20 January 2010, 28 January 2010, and 29 January 2010. Being found guilty on, beyond a reasonable doubt, during a Field Grade Article 15 hearing of three specifications of Article 86, absence without leave, and on 14 August 2009, 13 September 2009, and 13 October 2009, failing to go at the time prescribed to an appointed place of duty: and On divers' occasion, between on or about 6 January 2009 and on or about 27 October 2009, for being counseled for failure to report to an appointed place of duty, failure to maintain grooming standards by not shaving; and failure to obey several direct orders from superior noncommissioned officers. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 17 August 2010 (5) Administrative Separation Board: (6) Separation Decision Date / Characterization: 20 August 2010 / General Under Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 15 June 2006 / 6 years b. Age at Enlistment / Education / GT Score: 17 / HS Graduate / 118 c. Highest Grade Achieved / MOS / Total Service: E-4 / 25M10, Multimedia Illustrator / 4 years, 3 months d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AGCM, NDSM, GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 23 October 2009, for failure to go at the time prescribed to an appointed place of duty to wit: 1300 work call, on 14 August 2009, 13 September 2009, and 13 October 2009. The punishment consisted of reduction to E-3, forfeiture of $929.00 per month for two months (suspended), 45 days extra duty and restriction, and an oral reprimand. FG Article 15 dated 22 February 2010, for failing to go at the time prescribed to and appointed place of duty on9 December 2009, 18 December 2009, 20 January 2010, 28 January 2010, and 29 January 2010. The punishment consisted of reduction to E-2, forfeiture of $378.00 pay (suspended), and an oral reprimand. Several negative counseling statements for various acts of misconduct and duty performance. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): See below (1) Applicant provided: Rating Decision letter dated 24 January 2020, from the Department of Veterans Affairs indicating the applicant has been awarded 10 percent service- connected disability for persistent depressive disorder. This was established as directly related to military service. The applicant's record showed that in-service insomnia, rather than reflecting a unique syndrome, was instead eventually attributed to a more expansive syndrome of DSM IV "Dysthymia" (DSM V" Persistent Depressive Disorder)" of which it was but one Symptom. (2) AMHRR Listed: Report of Behavioral Health Evaluation, dated 20 May 2010, indicating the applicant was diagnosed with an Axis I with Occupational Problem; Axis II Diagnosis Deferred on Axis II. It was noted that the applicant was evaluated pertaining to separation under Chapter 13, AR 635-200. Result of this evaluation was based on the applicant self-report, clinical assessment, record review, and information provided by the applicant's commander. There was no evidence of mental defect, emotional illness, or psychiatric disorder of sufficient severity to warrant disposition through military medical channels. The applicant was mentally responsible, could distinguish right from wrong, and possessed sufficient mental capacity to understand and participate intelligently as a respondent in any administrative proceeding. The applicant was psychologically cleared for any administrative action deemed appropriated by his command. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; letter of declaration; service school academic evaluation report, dated 7 May 2009; decision letter from the Department of Veterans Affairs, dated 14 January 2020; letters of support; and DD Form 214 for the period of service under review. 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 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, commanders will separate a member under this Chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. (5) Paragraph 13-10 prescribes for the service of Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military records. An honorable characterization of service generally is required when the Government initially introduces limited use evidence. (6) Chapter 15 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 memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. 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 "JHJ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 13, unsatisfactory performance. 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 nonwaiverable 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. SUMMARY 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 to honorable and a narrative reason change to "Under Secretarial Authority." The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant was separated under the provisions of Chapter 13, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this chapter is "Unsatisfactory Performance," and the separation code is "JHJ." Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214, and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2- 3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant seeks relief contending, that his discharge was directly related to impropriety under Don't Ask Don't Tell or other similar policy. The applicant request relief because a hostile work environment under a noncommissioned officer caused mental health conditions that impaired the applicant's performance. These conditions did not outweigh the severity of the discharge and had the applicant been retained these deficiencies would have corrected themselves through continued treatment. The applicant contends that although the command readily handed out punishments and half-solutions that didn't address the core issues, they never put in for the applicant to see a mental health professional or send the applicant to a sleep study. The applicant felt that this uncontrolled tardiness, multiple counseling statements and eventually Article 15 led to the applicant feeling ostracized and less than in the eyes of peers as they had no idea the issues the applicant was dealing with and instead thought of the applicant as undisciplined or lazy. Evidence submitted by the applicant from the Department of Veterans Affairs indicates the applicant has been awarded 10 percent service-connected disability for persistent depressive disorder was noted. However, it should also be noted that the Report of Behavioral Health Evaluation, dated 20 May 2010, in the AMHRR indicates the applicant was diagnosed with an Axis I with Occupational Problem; Axis II Diagnosis Deferred on Axis II. It was noted that the applicant was evaluated pertaining to separation under Chapter 13, AR 635-200. Result of this evaluation was based on the applicant self-report, clinical assessment, record review, and information provided by the applicant's commander. There was no evidence of mental defect, emotional illness, or psychiatric disorder of sufficient severity to warrant disposition through military medical channels. The applicant was mentally responsible, could distinguish right from wrong, and possessed sufficient mental capacity to understand and participate intelligently as a respondent in any administrative proceeding. The applicant was psychologically cleared for any administrative action deemed appropriated by his command. 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 and found that the applicant has the following potentially mitigating diagnoses/experiences: The applicant held in-service diagnoses of Anxiety Disorder NOS and Dysthymic Disorder with reported Military Sexual Trauma involving sexual harassment for applicant's sexual orientation. Post- service, the applicant is service connected for Dysthymic Disorder. (2) Did the condition exist, or experience occur during military service? Yes. The applicant held in-service diagnoses of Anxiety Disorder NOS and Dysthymic Disorder with reported MST, sexual harassment for applicant's sexual orientation. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that the applicant's diagnoses in and of themselves are not mitigating. However, the reported Military Sexual Trauma is mitigating given the nexus between trauma and avoidance/difficulty with authority. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant's Military Sexual Trauma outweighed cause for separation - absent without leave; failing to go at the time prescribed to an appointed place of duty; failure to maintain grooming standards by not shaving; and failure to obey several direct orders from superior noncommissioned officers. b. Response to Contention(s): (1) The applicant requests an upgrade to honorable and a narrative reason change to "Under Secretarial Authority". The Board considered this contention and determined that the applicant's characterization of service and narrative reason warranted an upgrade based on the applicant's Military Sexual Trauma outweighing cause for separation - absent without leave; failing to go at the time prescribed to an appointed place of duty; failure to maintain grooming standards by not shaving; and failure to obey several direct orders from superior noncommissioned officers. Therefore, a discharge upgrade is warranted. (2) The applicant seeks relief contending, that his discharge was directly related to impropriety under Don't Ask Don't Tell or other similar policy. The Board considered this contention in board proceedings and determined that relief was warranted based on the changes to the regulation regarding DADT and the applicant's MST outweighing the applicant's misconduct. (3) The applicant contends that although the command readily handed out punishments and half-solutions that didn't address the core issues, they never put in for the applicant to see a mental health professional or send the applicant to a sleep study. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on other circumstances as outlined above. c. The Board determined the discharge is inequitable based on the applicant's Military Sexual Trauma outweighing the applicant's basis of separation - absent without leave; failing to go at the time prescribed to an appointed place of duty; failure to maintain grooming standards by not shaving; and failure to obey several direct orders from superior noncommissioned officers. 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's Military Sexual Trauma outweighed the basis for applicant's separation - absent without leave; failing to go at the time prescribed to an appointed place of duty; failure to maintain grooming standards by not shaving; and failure to obey several direct orders from superior noncommissioned officers. 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 AR20200007625 1