* Applicant's Name: a. Application Date: 22 July 2020 b. Date Received: 4 August 2020 c. Counsel: None * 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. The applicant seeks relief contending, in effect, the applicant loved the time in the service but had multiple difficult experiences. In 2006, the applicant was raped by a Soldier in a different unit. The applicant attempted to press charges but was told no because the Soldier was a hero. The person is currently serving time in a federal prison for charges related to underage individuals. The related court documents are attached. After the incident, the applicant continued to serve, but experienced sexual harassment from a Major in the applicant's unit. The applicant attempted to file a complaint against the officer because the applicant was very uncomfortable with the officer's touching and inappropriate conduct. The applicant was told "[the officer] is about to retire, let's not cause [the officer] problems during [the officer's] last years of service. [The officer] is a good officer." The applicant never went back to the unit because the applicant believed this was unacceptable. b. Board Type and Decision: In a records review conducted on 26 July 2023, and by a 5-0 vote, the Board determined that the characterization was inequitable based on the applicant's length of service and applicant's post service diagnosis of PTSD and MST experience mitigated the applicant's misconduct - Absent Without Leave (AWOL). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable. Please see Section 9 of this document for more detail regarding the Board's decision. (Board member names available upon request) * DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Unsatisfactory Participation / NGR 600- 200, Paragraph 6-35j / NA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 23 February 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF / Affidavit of Service by Mail, reflects the unit administrator, mailed the notification, subject: Separation under AR 135-178: Misconduct, dated 11 May 2007, to the applicant by certified mail on 7 May 2007. The applicant's AMHRR is void of a response from the applicant. (2) Basis for Separation: The applicant was informed of the following reason: Absent Without Leave (AWOL) (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 23 February 2009 / General (Under Honorable Conditions) / The separation authority approved the separation under Army Regulation 135-178, Chapter 13, for Unsatisfactory Participation. NGR 600-200, Paragraph 6- 35j defers to AR 135-178, chapter 13 for unsatisfactory participation, in effect at the time. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 May 2004 / 6 years b. Age at Enlistment / Education / GT Score: 17 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 42A10, Human Resources Specialist / 4 years, 9 months, 12 days d. Prior Service / Characterizations: IADT, 22 June 2004 - 3 September 2004 / NA (Concurrent Service) IADT, 21 June 2005 - 17 September 2005 / UNC (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Three Commander's Notifications of Reduction Action, undated, and dated 29 January 2007 and 4 June 2008, reflect the applicant was being considered for reduction for inefficiency because of unexcused absences on 10 and 11 June 2005; 5, 6, and 7 January 2007; between 3 and 4 May 2008; and between 31 May and 1 June 2008. The record is void of any acknowledgments of receipt from the applicant. Six Letter of Instructions (LOI), Unexcused Absence, reflect the applicant was absent from the scheduled unit training assembly (UTA) or multiple unit training assembly (MUTA) for the following period(s): LOI, dated 19 January 2007, absences on 5 through 7 January 2007 for five periods. Unless the absences indicated were excused, the applicant would have accrued 13 unexcused absences within one-year period. LOI, dated 6 April 2007, absences on 31 March and 1 April 2007 for four periods. Unless the absences indicated were excused, the applicant would have accrued 22 unexcused absences within one-year period. LOI, dated for 6 May 2007, absences on 4 through 6 May 2007 for five periods. The document is void of the number of absences accrued within one-year period. LOI, dated 14 June 2007, absences on 4 and 9 through 10 June 2007 for four periods. Unless the absences indicated were excused, the applicant would have accrued 9 unexcused absences within one-year period LOI, dated 19 July 2007, absences between 14 and 18 July 2007 for 15 periods. Unless the absences indicated were excused, the applicant would have accrued 46 unexcused absences within one-year period. LOI, dated for 4 June 2008, absences from 31 May 2008 to 1 June 2008 for four periods. Unless the absences indicated were excused, the applicant would have accrued 8 unexcused absences within one-year period. Criminal Investigation Division (CID) Report of Investigation - 1st Corrected Final, dated 15 October 2007, reflects a CID investigation was initiated upon notification from the Seattle Police Department, of a rape and robbery involving an active duty Army Soldier and an inactive Army National Guard Soldier. The investigation established probable cause to believe Specialist (SPC) [redacted] committed the offenses or Rape and Robbery against the applicant on 19 October 2006. The applicant reported SPC [redacted] raped the applicant when SPC [redacted] forced the applicant to engage in sexual intercourse at gun point after the two entered a hotel room for the purpose of engaging in sexual intercourse and stole $300 from the applicant before departing the hotel room. SPC [redacted] was interviewed and denied the offenses. Certified mail receipt dated 20 May 2008, reflects a package was sent to the applicant and Seattle but on 26 May 2008, the package was returned to sender stating attempted not known unable to forward. Memorandum, dated 25 June 2008, reflects the applicant previously was considered for separation because the applicant was absent for more than 9 unit training assemblies (UTA) in a 12 month period. The packet was delayed because the command attempted to salvage the applicant, but the command did not succeed, and the applicant continued to be absent without leave from UTAs. The applicant provided: King County Prosecuting Attorney letter, dated 29 June 2010, reflecting the prosecuting attorney was willing to discuss foregoing prosecuting the defendant, S. H., for a rape and robbery charge, which occurred in 2006 in Seattle, referring to Seattle Police Department Incident Number 06-445426, in exchange for a plea of guilty in the U.S. District Court to the defendant's current charges. The defendant would be facing one count of rape in the first degree in robbery in the first degree with the former being a possible lifetime sentence under Washington sentencing Reform Act. The prosecuting attorney stated the willingness to do so would depend on the terms of the plea agreement and the willingness of the victim in the case to the arrangement. King County Prosecuting Attorney letter, dated 20 July 2010, reflecting the prosecuting attorney was following up on a conversation with S. H.'s defense attorneys, regarding the defendant being a suspect in a rape which occurred in Seattle in 2006. The defendant's defense counsels inquired whether the prosecuting office would be willing to forego prosecution of the defendant for the crime, if the defendant entered a plea of guilty in the US District Court to one count of sex trafficking and one count of attempted sex trafficking, which sentencing ranged from a minimum of 10 years and a minimum of 15 years and with a probation term of up to life. The defense counsel indicated the government will seek a 15 year sentence and a range of 20 years to life for the defendant's probation term. The defendant will seek no less than 10 years' incarceration. The prosecuting attorney agreed with foregoing prosecution of the defendant for the 2006 rape charge in exchange for the defendant entering a plea of guilty to the two counts described above. United States District Court, Western District of Washington at Tacoma, Government's Supplemental Sentencing Memorandum, dated 22 October 2010, reflecting: The defendant S. H. urged the court to prevent the instant charge victim and K. M., an important interested individual to the case from fully participating. The defendant argued the court should limit the victim's statement and outright exclude K. M. from addressing the court because K. M. was not a charge federal victim. The U.S. Attorney argued the instant victim and K. M. should be allowed to fully allocate at the time of sentencing. The U.S. Attorney noted, regarding the victim K. M., the King County Prosecuting Attorney's Office (KCPAO) initially referred the case to the Army CID because the defendant, S. H., was an active member of the Army. The Army CID declined to prosecute for reasons unknown. After the U. S. Attorney's office re-referred the rape and robbery case to the KCPAO, a deputy prosecuting attorney and local law enforcement officers interviewed the victim and conducted an additional investigation. The KCPAO and law enforcement officers found the victim credible and believable and concluded the other evidence corroborated the victim's story. i. Lost Time / Mode of Return: NIF j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; NGB Form 22; Service School Academic Evaluation Report; District Court's Governments Supplemental Sentencing Memorandum; two prosecuting attorney's letters. 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 a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct 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 135-91 states a member is an unsatisfactory participant when nine or more unexcused absences from scheduled drills accrue during a one-year period and attempts to have the Soldier respond or comply with orders or correspondence have resulted in - the Soldier's refusal to comply with orders or correspondence; or a notice sent by certified mail was refused, unclaimed, or otherwise undeliverable; or verification the Soldier has failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed. Discharge action may be taken when the Soldier cannot be located or is absent in the hands of civil authorities in accordance with the provisions of AR 135-91, paragraph 2-18, and Chapter 3, section IV, of AR 135-178. e. Army Regulation 135-178 prescribes the policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the United States (ARNGUS) and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. (1) Paragraph 2-9a prescribes an honorable characterization 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 any other characterization would be clearly inappropriate. (2) Paragraph 2-9b, prescribes, if a Soldier's service has been honest and faithful, it is appropriate to characterize service as general (under honorable conditions). Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the Soldier's conduct or performance of duty outweigh positive aspects of the Soldier's military record. (3) Paragraph 2-9c, prescribes the service may be characterized as under other than honorable conditions only when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security reasons, and under other circumstances. (4) Chapter 3-23 (Section IV), states, if separation proceedings under this chapter have been initiated against a Soldier confined by civil authorities, the case may be processed in the absence of the respondent. (5) Chapter 12 (previously Chapter 13), in affect at the time, provides in pertinent part, individuals can be separated for being an unsatisfactory participant. Soldier is subject to discharge for unsatisfactory participation when it is determined the Soldier is unqualified for further military service because: The Soldier is an unsatisfactory participant as prescribed by AR 135-91, chapter 4; Attempts to have the Soldier respond or comply with orders or correspondence. (6) Paragraph 12-3, Characterization of service normally will be under other than honorable conditions, but characterization as general (under honorable conditions) may be warranted under the guidelines in chapter 2, or uncharacterized if the Soldier is in entry-level status. f. National Guard Regulation (NGR) 600-200, establishes standards, policies, and procedures for the management of the Army National Guard (ARNG) and the Army National Guard of the United States (ARNGUS) enlisted Soldiers in the functional areas of: Classification and Reclassification; Personnel Management; Assignment and Transfer, including interstate transfer; Special Duty Assignment Pay; Enlisted Separations; and Command Sergeant Major Program. (1) Chapter 6 sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG/ARNGUS. (2) Paragraph 6-25, prescribes the discharge of Soldiers on active duty, (Title 10, USC) in AGR, IET, ADT, and ADOS status, as well as those ordered to active duty for contingency operations or under mobilization conditions, is governed by AR 635-200. All Outside Continental United States (OCONUS) training, including AT is conducted in Title 10 ADT status. Refer to AR 135-178 when considering enlisted Soldiers not on active duty and those on full-time National Guard duty (FTNGD) under Title 32 USC for discharge from the ARNG and as a Reserve of the Army. (3) Paragraph 6-35j defers to AR 135-178, chapter 12 for unsatisfactory participation. Commanders may recommend retention of Soldiers who have accrued 9 or more unexcused absences within a one-year period. Submit requests with justification for retention to the State MPMO/G1. Include verification the notification requirements of AR 135-91 and paragraph 6-32 have been met. RE 3. 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. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends military sexual trauma affected behavior which led to the discharge. A CID Report reflects an Army Soldier raped and robbed the applicant in Seattle in 2006. The report redacted the name of the offender. The applicant provided court documents indicating a defendant, S. H., was pending prosecution for sex trafficking and attempted sex trafficking in 2010. The defendant entered to a plea agreement with the prosecuting attorney to not prosecute a previous charge of rape and robbery committed against a victim with the initials K.M., in Seattle in 2006. The applicant did not submit any evidence, other than the applicant's statement, to support the contention the discharge resulted from any medical condition. The AMHRR is void of a mental status evaluation (MSE). The applicant contends the sexual assault by a member of another unit and sexual harassment by a member of the applicant's unit were overlooked by the command. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the 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? No. The Board's Medical Advisor reviewed DoD the VA medical records and found no mitigating BH diagnoses on the applicant. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused, or mitigated a discharge. (2) Did the condition exist, or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): (1) The applicant requests an upgrade to honorable. The Board considered this contention and determined that the characterization is inequitable based on the applicant's length of service and applicant's post service diagnosis of PTSD and MST experience outweighing the misconduct - AWOL. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. (2) The applicant contends military sexual trauma affected behavior which led to the discharge. The Board liberally considered this contention, however, did not make a determination, as the Board already voted to upgrade to Honorable as outline in paragraph 9a (1) above. (3) The applicant contends the sexual assault by a member of another unit and sexual harassment by a member of the applicant's unit were overlooked by the command. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted as outline in paragraph 9a (1). c. The Board determined the discharge is inequitable based on the applicant's PTSD and MST experience mitigated the applicant's misconduct - Absent Without Leave (AWOL). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable. However, the applicant may request a personal appearance hearing to address further issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because, because the applicant's mitigating condition (PTSD and MST) outweighed the misconduct, and the previous characterization was inequitable. Thus, the prior characterization is no longer appropriate. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, as the reason the applicant was discharged was both proper and equitable. (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: No Change d. Change RE Code to: No Change e. Change Authority to: No Change 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 AR20200008127 1