1. Applicant's Name: a. Application Date: 28 June 2020 b. Date Received: 4 September 2020 c. Counsel: 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, through counsel, an upgrade to honorable along with a reentry (RE) code, separation program designator (SPD) code, and narrative reason change. The applicant's counsel seeks relief contending, in effect, the applicant's command did not thoroughly evaluate the effects of the applicant military sexual trauma (MST) and post-traumatic stress disorder (PTSD) at the time of the misconduct. After the sexual assault the applicant was forced to confront ceaseless rumors about the sexual abuse and sexuality because the applicant was a victim. The applicant was denied the opportunity to immediate seek mental health treatment for the sexual assault. The applicant took the avenue of self-medicating through cocaine to deal with the trauma, The applicant was coerced into obtaining drugs with the promise of getting help afterwards. The applicant should have been given the opportunity to rehabilitate from the drug problem and continue with mental health treatment before charges were made. b. Board Type and Decision: In a records review conducted on 15 December 2023, and by a 3-2 vote, the Board determined that the characterization of service was inequitable based on the applicant's Post-Traumatic Stress Disorder due to Military Sexual Trauma mitigating the applicant's wrongful use of illegal drugs. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. The Board also determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them due to the unmitigated misconduct for distribution of illegal drugs and wrongfully attempting to impede an investigation. 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: 3 March 2016 c. Separation Facts: (1) Date DD Form 458 (Charge Sheet): NIF (See Special Court-Martial Order (SCMO) described below in item 4h(2). (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) Legal Consultation Date: On 16 February 2016, the applicant voluntarily requested discharge in lieu of trial by court-martial under AR 635-200, Chapter 10, for charges preferred against the applicant under the Uniform Code of Military Justice. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 17 February 2016 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 7 January 2014 / 4 years b. Age at Enlistment / Education / GT Score: HS Graduate / 111 c. Highest Grade Achieved / MOS / Total Service: E-3 / 68W10, Health Care Specialist / 2 years, 1 month, 27 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) CID Report of Investigation, 3 July 2014, reflects the applicant was the victim of aggravated sexual contact when the victim was held down and touched inappropriately. (2) CID Law Enforcement Report - Final, dated 16 December 2015, investigation established probable cause to believe that applicant committed the offense of wrongful use, possession, and distribution of a controlled substance and failure to obey a Commanding General Policy Letter when applicant was found in possession of cocaine and drug paraphernalia and admitted to having consumed cocaine which applicant provided to 1LT, and committed the offense of obstruction of justice when the applicant attempted to dispose of the bag which contained residue of cocaine. (3) SCMO Number 18, 7 November 2016, reflects the applicant was charge with wrongfully using cocaine between on or about 29 July 2015 and on or about 2 August 2015; wrongfully distributing some amount of cocaine between on or about 31 July 2015 and on or about 2 August 2015; wrongfully used lysergic acid diethylamide (LSD) on or about 1 August 2015; wrongfully distributed some amount of LDS on or about 1 August 2015; wrongfully distrusted some amount of Adderall between on or about 1 June 2015 and on or about 1 August 2015; and wrongfully endeavored to impede an investigation into the applicant's misconduct by disposing of a plastic bag containing cocaine residue, and asking that SFC J.G. discard said bag on or about 5 August 2015. On 17 February 2016, the proceedings were terminated. The charges and specifications were withdrawn by the convening authority. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: The applicant's counsel provides in-service medical records pertaining to the applicant's mental health diagnosis. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Legal Brief with 5 exhibits (185 total pages), Letter from VA. 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) 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 is normally 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) Paragraph 10b stipulates Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper. 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 waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. 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. RE-4 Applies to: Person separated from last period of service with a nonwaiverable 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, through counsel, an upgrade to honorable along with a RE code, SPD code, and narrative reason change. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant's counsel requests the applicant's narrative reason, RE code and SPD code be changed. The applicant was separated under the provisions of Chapter 10, with an under other than honorable conditions discharge and a RE code of "4". The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial By Court-Martial" and the separation code is "KFS." Army Regulation 635-8, Separation 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 or SPD code to be entered under this regulation. Army Regulation 601-210 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. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1 defines reentry eligibility (RE) codes. RE-4 Applies to: Person separated from last period of service with a nonwaiverable 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. The applicant's counsel contends, in effect, the applicant's command did not thoroughly evaluate the effects of the applicant's MST and PTSD at the time of the misconduct and the applicant was denied the opportunity to immediate seek mental health treatment for the sexual assault. CID Report of Investigation, 3 July 2014, reflects the applicant was the victim of aggravated sexual contact when the victim was held down and touched inappropriately. The applicant's counsel contends, in effect, the applicant took the avenue of self-medicating with cocaine to deal with the trauma and the applicant was coerced into obtaining drugs with the promise of getting help afterwards. The applicant's counsel contends, in effect, the applicant should have been given the opportunity to rehabilitate from the drug problem and continue with mental health treatment before charges were made. Army Regulation 635-200, paragraph 1-17d(2), entitled counseling and rehabilitative requirements, states the separation authority may waive the rehabilitative requirements in circumstances where common sense and sound judgment indicate such a transfer will serve no useful purpose or produce a quality Soldier. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by , 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 experienced a Military Sexual Trauma in 2014 with diagnoses of Post-Traumatic Stress Disorder, Acute Stress Disorder, Adjustment Disorder, and Attention Deficit Hyperactivity Disorder. Additionally, the applicant reported harassment secondary to others learning of the Military Sexual Trauma. Post-service, the applicant is service connected for Post-Traumatic Stress Disorder secondary to Military Sexual Trauma. . (2) Did the condition exist or experience occur during military service? Yes. The applicant experienced a Military Sexual Trauma in 2014 with diagnoses of Post-Traumatic Stress Disorder, Acute Stress Disorder, Adjustment Disorder, and Attention Deficit Hyperactivity Disorder. Additionally, the applicant reported harassment secondary to others learning of the Military Sexual Trauma. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined that while the applicant's basis for separation is only partially mitigated, an upgrade is still recommended due to MST, secondary harassment, likely distribution was related to using drugs with other Soldiers versus planning out sales for personal gain during sobriety, and time since discharge. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that although the applicant's Post-Traumatic Stress Disorder due to Military Sexual Trauma did mitigate the applicant's misconduct of wrongful use of illegal drugs, the available evidence did not support a conclusion that the applicant's illegal drugs distribution and wrongful attempt to impede an investigation were mitigated. b. Response to Contention(s): (1) The applicant's counsel contends, in effect, the applicant's command did not thoroughly evaluate the effects of the applicant's MST and PTSD at the time of the misconduct and the applicant was denied the opportunity to immediate seek mental health treatment for the sexual assault. The Board determined that this contention was valid and voted to upgrade the characterization of service due to Post-Traumatic Stress Disorder due to Military Sexual Trauma mitigating the applicant's wrongful use of illegal drugs misconduct. (2) The applicant's counsel contends, in effect, the applicant took the avenue of self- medicating with cocaine to deal with the trauma and the applicant was coerced into obtaining drugs with the promise of getting help afterwards. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's Post-Traumatic Stress Disorder due to Military Sexual Trauma mitigating the applicant's wrongful use of illegal drugs misconduct. (3) The applicant's counsel contends, in effect, the applicant should have been given the opportunity to rehabilitate from the drug problem and continue with mental health treatment before charges were made. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's Post-Traumatic Stress Disorder due to Military Sexual Trauma mitigating the applicant's wrongful use of illegal drugs misconduct. c. The Board determined that the characterization of service was inequitable based on the applicant's Post-Traumatic Stress Disorder due to Military Sexual Trauma mitigating the applicant's wrongful use of illegal drugs. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. The Board also determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them due to the unmitigated misconduct for distribution of illegal drugs and wrongfully attempting to impede an investigation. 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 General, Under Honorable Conditions because the applicant's Post-Traumatic Stress Disorder due to Military Sexual Trauma mitigated the applicant's misconduct of wrongful use of illegal drugs. 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 and the RE code due to the unmitigated misconduct for distribution of illegal drugs and wrongfully attempting to impede an investigation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: General, Under Honorable Conditions 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 AR20200008706 1