1. Applicant's Name: a. Application Date: 1 July 2020 b. Date Received: 14 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 general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant was forced by the first sergeant (1SG) to either have sex with the 1SG or the 1SG would submit a separation packet following the Article 15 the applicant received. The applicant was falsely given a serious offense general discharge because the applicant refused to have intercourse with the 1SG. b. Board Type and Decision: In a records review conducted on 21 July 2023, and by a 4- 1 vote, the Board determined the discharge is inequitable based on the applicant's MST, PTSD and Major Depressive Disorder (MDD) outweighing the disobeying a lawful order, disrespecting an NCO, reckless driving and having no car insurance 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 to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. The Board voted and determined the reentry eligibility (RE) code was proper and equitable due to applicant's PTSD, MST, and MDD diagnoses warranting consideration prior to reentry of military service. Please see Section 10 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: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 16 October 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: 27 August 2015 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 January 2014 / 4 years b. Age at Enlistment / Education / GT Score: 20 / High School Graduate / 89 c. Highest Grade Achieved / MOS / Total Service: E-2 / 92A10, Automated Logistical Specialist / 1 year, 8 months, 24 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: A DA Form 4833 (Commander Report of Disciplinary or Administrative Action), dated 13 March 2015, reflects the applicant was apprehended for disrespecting another noncommissioned officer/police officer (NCO/PO), under Article 91, Uniform Code of Military Justice (UCMJ) (on post). Investigation revealed a resident notified the Schofield Barracks Police Station of a loud noise complaint and that the applicant was having a party at the residence. The applicant declined to end the party and walked away from the NCO/PO numerous times and did not comply to the officer's instructions between 26 and 27 December 2014. This form reflects the applicant received a CG Article, dated 1 April 2015, which the applicant provided: Going from appointed place of duty on or about 4 November 2014; Being disrespectful in deportment toward two noncommissioned officers, by repeatedly walking away from them, talking on the cell phone, and ignoring their commands on or about 27 December 2014; and Failed to obey a lawful order issued by an NCO to write a 700 word essay on being at the appointed place of duty at all times on or about 6 November 2014. The page which would include the punishment was not submitted. The punishment worksheet reflects the punishment consisted of reduction to E-1; forfeiture of 7 days' pay (suspended); and extra duty and restriction for 14 days. Law Enforcement Report - Final, dated 1 May 2015, reflects an investigation established the applicant committed the offenses of excessive speed (65 miles per hour (MPH) in a 25 MPH zone), reckless driving, and no insurance on 17 April 2015. The trial counsel opined that there was sufficient probable cause to title the applicant with excessive speed, no insurance, and reckless driving. Report of Medical History, dated 8 May 2015, indicates the applicant and the examiner noted depression and was seeing the chaplain with follow up with the primary care manager. The applicant's DD Form 214, reflects the applicant had not completed the first full term of service. The applicant was discharged under the authority of AR 635-200, paragraph 14-12c, with a narrative reason of Misconduct (Serious Offense). The DD Form 214 was authenticated with the applicant's electronic signature. The applicant's Enlisted Record Brief, dated 19 October 2015, reflects the applicant was reduced from E-2 to E-1 effective 1 April 2015. The applicant provided a DD Form 2910 (Victim Reporting Preference Statement), dated 21 December 2017, which reflects the applicant reported being a victim of sexual assault and the report was unrestricted. Law Enforcement Report - Final, dated 6 June 2018, reflects on 21 December 2017 the applicant reported being touched in a sexual manner by 1SG [redacted] between 1 and 31 July 2015. The applicant stated the 1SG [redacted] placed a hand on the applicant's thigh and attempted to solicit the applicant for sex in exchange for allowing the applicant to remain in the Army. The trial counsel opined there was no probable cause to believe 1SG [redacted] committed the offense of abusive sexual contact and cruelty of subordinates as the allegations were baseless. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Veterans Affairs (VA) Summary of Benefits letter, dated 1 July 2020, reflecting the applicant was rated 100 percent combined service-connected disability and permanently disabled as of 5 June 2020. VA eBenefits webpage, reflecting the applicant was rated 70 percent service-connected disability for post-traumatic stress disorder with major depressive disorder, recurrent episode, moderate, unspecified anxiety disorder, and alcohol use disorder. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214 (Certificate of Release or Discharge from Active Duty); DD Form 2910; partial case separation packet; copies of military personnel records; eight third party character references; VA Summary of Benefits letter; VA eBenefits webpage. 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), 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 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. (5) 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. (6) Paragraph 14-12c prescribes 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. (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 "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). 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-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. 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. 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 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 14, paragraph 14-12c, by reason of Misconduct (Serious Offense), with a characterization of service of general (under honorable conditions). The applicant contends, in effect, sexual harassment and sexual assault by the 1SG in the chain of command ultimately led to the discharge. The Criminal Investigation Division, provided a Law Enforcement Report, dated 6 June 2018, which reflects the applicant reported being touched in a sexual manner by the applicant's 1SG and attempted to solicit the applicant for sex in exchange for allowing the applicant to remain in the Army between 1 and 31 July 2015. The trial counsel opined there was no probable cause to believe 1SG committed the offense of abusive sexual contact and cruelty of subordinates as the allegations were baseless. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The third party statements provided with the application speak highly of the applicant. They all recognize the applicant's good military service. The Army Review Board Agency provided the Commander Report of Disciplinary or Administrative Action and Law Enforcement Reports to the applicant at the address in the application on 25 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 {Note: Unspecified Anxiety DO is subsumed under PTSD}; Major Depressive DO (MDD) {Note- Adjustment DO is subsumed under MDD}. . (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that VA service connection for PTSD and MDD establishes that the BH condition either began or occurred during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a mitigating BH experience, MST and two mitigating BH conditions: PTSD and MDD. As there is an association between MST/PTSDMDD and oppositional, defiant behaviors, there is a nexus between applicant's experience of MST/PTSD/MDD and applicant's disrespectful and disorderly conduct. The offenses of reckless driving and having no insurance are not mitigated. (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 MST, PTSD and MDD outweighed the disobeying a lawful order, disrespecting an NCO, reckless driving and having no car insurance basis for separation for the aforementioned reason(s). b. Response to Contention(s): The applicant contends being forced by the first sergeant (1SG) to either have sex with the 1SG or the 1SG would submit a separation packet following the Article 15 the applicant received. The Board considered this contention and determined that this based on applicant's MST an upgrade to the discharge is warranted as the applicant's MST, PTSD, and MDD outweigh the applicant's disobeying a lawful order, disrespecting an NCO, reckless driving and having no car insurance basis for separation. c. The Board determined the discharge is inequitable based on the applicant's MST, PTSD and Major Depressive Disorder (MDD) outweighing the disobeying a lawful order, disrespecting an NCO, reckless driving and having no car insurance 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 to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. The Board voted and determined the reentry eligibility (RE) code was proper and equitable due to applicant's PTSD, MST, and MDD diagnoses warranting consideration prior to reentry of military service. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's MST, PTSD, and MDD outweighed the applicant's misconduct of disobeying a lawful order, disrespecting an NCO, reckless driving and having no car insurance. Thus, the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (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: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change e. Change Authority to: AR 635-200, paragraph 14-12a 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 AR20200008530 1