1. Applicant's Name: a. Application Date: 30 June 2020 b. Date Received: 7 July 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 under other than honorable conditions. The applicant requests an upgrade to honorable or general (under honorable conditions) and for the first enlistment to show on the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty). The applicant seeks relief contending, in effect, when the applicant was deployed to Iraq in 2008 the applicant was assaulted by three men in the unit. The applicant was sent home early from the deployment and was moved to another company and was treated like nothing happened. After reenlisting the applicant was moved to Fort Carson, Colorado. The applicant kept reaching out to mental health services on base and was told that the applicant would get through it. To cope with the trauma, the applicant started using drugs. The applicant struggled with post- traumatic stress disorder (PTSD) and sexual assault/harassment for years alone. The applicant felt that no one cared about what the applicant was dealing with and that they could not be bothered with listening to the applicant. In 2012, the applicant got in trouble for drug use and instead of helping the applicant when the applicant told them what the applicant was dealing with, the commander told the applicant to get over it. The applicant was forced to sit in on sexual assault classes and what to do when an assault happens and how the military would handle it. The information they put out in those classes are false. Being assaulted is not something that can be swept under the rug like the Army thought it should be. The applicant has dealt with PTSD from this for years. b. Board Type and Decision: In a records review conducted on 21 July 2023, and by a 5- 0 vote, the Board determined the discharge is inequitable based on the applicant's PTSD, Depression, Anxiety DO, MST, and Acute Stress DO mitigating the applicant's cocaine abuse and AWOL accepted basis for separation. 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 based on the severity of applicant's BH diagnoses. 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: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 21 May 2012 c. Separation Facts: NIF (1) Legal Consultation Date: NIF (2) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (3) Recommended Characterization: NIF (4) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 January 2007 / 3 years b. Age at Enlistment / Education / GT Score: 20 / High School Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-3 / 92A10, Automated Logistical Specialist / 6 years, 10 months, 17 days d. Prior Service / Characterizations: ARNG, 28 August 2003 - 6 June 2005 / GD (Break in Service) RA, 17 January 2007 - 21 May 2005 / UOTHC e. Overseas Service / Combat Service: SWA / Iraq (11 May 2007 - 22 January 2008) f. Awards and Decorations: ARCOM, AAM, AGCM, NDSM, GWOTSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Criminal Investigation Division (CID) Report of Investigation - Initial Final, dated 21 April 2008, reflects an investigation determined a male Soldier committed the offenses of rape, forcible sodomy, and attempted rape when engaging in sexual intercourse with the applicant while the applicant was intoxicated on canned air and alcohol. CID Report of Investigation - Initial Final, dated 29 April 2008 and CID Report of Investigation - Initial Final Supplemental, dated 12 July 2008, reflects an investigation determined male Soldiers committed the offenses of rape and forcible sodomy when they admitted they engaged in sexual intercourse and forcible sodomy with the applicant without the applicant's consent. Military Police Report, dated 15 February 2012, reflects the applicant committed an offense of wrongful use of a controlled substance (cocaine) - determined by a random unit urinalysis test given on 12 December 2011. Military Police Report, dated 17 February 2012, reflects the applicant was absent without leave (AWOL) from 14 February to 30 March 2012 and was returned to military control after being arrested by the Colorado Springs Police Department. CID Report of Investigation - Initial Final, dated 5 March 2012, reflects an investigation established probable cause to believe the applicant committed the offense of Wrongful Use of a Controlled Substance when the applicant submitted a urine specimen on 12 December 2011, during the conduct of a unit urinalysis test, which subsequently tested positive for cocaine. A DA Form 4833 (Commander Report of Disciplinary or Administrative Action) reflects the applicant received a FG Article 15 on 13 February 2012, for wrongfully using cocaine. The punishment consisted of a reduction from E-4 to E-1; forfeiture of $745 pay per month for 2 months (suspended); and extra duty and restriction for 45 days. The suspension was vacated due to the applicant went AWOL on 13 February 2012. A DA Form 4833 reflects the applicant received the offense of Desertion - Apprehended by Civilian Authorities (Article 85, UCMJ) on 14 February 2012. The applicant went AWOL on 13 February 2012. The applicant was arrested by civil authorities on 30 March 2012 and remained imprisoned until 25 April 2012. The applicant was released to the unit and immediately placed in pretrial confinement pending court martial due to previous history and being a flight risk. The applicant was released from pretrial confinement on 10 May 2012 and received a chapter 10, other than honorable separation on 14 May 2012 with a final out transition date of 21 May 2012. Four Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)," to "AWOL," effective 14 February 2012; From "AWOL" to "Dropped From Rolls (DFR)," effective 15 March 2012; From "PDY" (should have been "DFR"), to "Confined by Civil Authorities (CCA)," effective 30 March 2012; From "CCA" to "PDY," effective 10 May 2012. The applicant's DD Form 214, reflects the applicant completed the first full term of service. The applicant was discharged under the authority of AR 635-200, chapter 10, with a narrative reason of In Lieu of Trial by Court-Martial. The DD Form 214 was not authenticated with the applicant's electronic signature. The applicant had lost time for the period 14 February to 10 May 2012. i. Lost Time / Mode of Return: 2 months, 27 days (AWOL, 14 February - 10 May 2012) / Apprehended by Civil Authorities j. Behavioral Health Condition(s): (1) Applicant provided: A medical problem list history reflects the applicant had a diagnosis of acute and chronic PTSD, acute stress disorder, adjustment insomnia, phase of life or life circumstance problem, raped and psychiatric diagnosis or condition deferred on Axis I in 2008, PTSD in 2009, and anxiety, depression, and depression seasonal pattern in 2011. (2) AMHRR Listed: None. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; self-authored letter; medical problem list history. 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 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), 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 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. (6) Paragraph 10-8a stipulates a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. (See chap 3, sec II.) (7) 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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, In Lieu of Trial by Court-Martial. 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaivable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 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 or general (under honorable conditions) and for the first enlistment to show on the applicant's DD Form 214. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant's AMHRR includes partial facts and circumstances concerning the events which led to the discharge from the Army. The applicant's AMHRR does contain a properly constituted DD Form 214, which was not authenticated by the applicant's electronic signature. The applicant's DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 10, by reason of In Lieu of Trial by Court-Martial, with a characterization of service of under other than honorable conditions. The applicant requests that the first enlistment be placed on the applicant's DD Form 214. The applicant's AMHRR reflects the applicant served in the Army National Guard from 28 March 2003 to 6 June 2005 and was separated with a general discharge. The applicant had a break in service prior to enlisting in the Regular Army on 17 January 2007. AR 635-8 (Separation Processing and Documents), reflects Soldiers who are also leaving ARNG Service will be issued separation orders and a NG Bureau Form 22 (NG Report of Separation and Record of Service) by the Soldier's State Joint Forces Headquarters. The applicant's request to add the first enlistment to the DD Form 214 does not fall within this board's purview. The applicant may apply to the Army Board for Correction of Military Records, using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. The applicant contends, in effect, when the applicant was deployed to Iraq in 2008 the applicant was assaulted by three men in the unit. The applicant sought help through mental health services on base, however, they told the applicant that the applicant would get through it. To cope with the trauma, the applicant started using drugs. In 2012, the applicant got in trouble for drug use and instead of helping the applicant when the applicant told the chain of command what the applicant was dealing with, the commander told the applicant to get over it and did not want to hear it. The applicant struggled with PTSD and sexual assault/harassment for years alone. The applicant provided a medical problem list history that reflects the applicant had a diagnosis of acute and chronic PTSD, acute stress disorder, adjustment insomnia, phase of life or life circumstance problem, raped and psychiatric diagnosis or condition deferred on Axis I in 2008, PTSD in 2009, and anxiety, depression, and depression seasonal pattern in 2011. A CID report reflects it was reported in January 2008 and determined that male Soldiers raped and forced sodomy on the applicant while the applicant was intoxicated. The Army Review Board Agency provided the CID and Military Police Reports and Commander Reports of Disciplinary or Administrative Action to the applicant at the address in the application on 14 August 2021 requesting comments but received no response from the applicant. 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: PTSD, Depression, Anxiety DO, MST, Acute Stress DO. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the diagnoses of PTSD, Depression, Anxiety, MST and Acute Stress DO were made while applicant was on active duty. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that without knowledge of the basis of separation, no decision regarding medical mitigation can be made. However, if the basis of separation was the positive cocaine test result or ASAP rehabilitation failure, these would be mitigated by the diagnoses of PTSD due to MST, Acute Stress DO, Depressive DO and Anxiety DO given the association between these conditions and the use of alcohol and/or illicit drugs to self-medicate painful emotional symptoms. (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 PTSD, Depression, Anxiety DO, MST, Acute Stress DO outweighed the cocaine abuse and AWOL, the accepted basis for separation for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends when the applicant was deployed to Iraq in 2008 the applicant was assaulted by three men in the unit. The Board determined that this contention was valid and voted to upgrade the characterization of service based on PTSD, Depression, Anxiety DO, MST, and Acute Stress DO mitigating the applicant's cocaine abuse and AWOL charges. (2) The applicant contends struggling with PTSD and sexual assault/harassment for years alone. The Board determined that this contention was valid and voted to upgrade the characterization of service based on PTSD, Depression, Anxiety DO, MST, and Acute Stress DO mitigating the applicant's cocaine abuse and AWOL charges. c. The Board determined the discharge is inequitable based on the applicant's PTSD, Depression, Anxiety DO, MST, and Acute Stress DO mitigating the applicant's cocaine abuse and AWOL accepted basis for separation. 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 based on the severity of applicant's BH diagnoses. 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 the applicant's PTSD, Depression, Anxiety DO, MST, and Acute Stress DO mitigated the applicant's misconduct of cocaine abuse and AWOL. 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 applicant's BH conditions limiting appropriate military service. 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: 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 AR20200008453 1