1. Applicant's Name: a. Application Date: 18 April 2020 b. Date Received: 8 May 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the discharge should be upgraded to honorable due to the applicant endured domestic violence during active-duty service that resulted in a 3rd degree burn requiring a skin Graft which then led to command and hospital staff harassment. This was solely based on sexual orientation resulting in improper medical care that led to Post- Traumatic Stress Disorder (PTSD), anxiety, and depression. The applicant was forced to find the major in the William Beaumont Army Medical Center's (WBAMC) burn unit to get legal statements and was told not to return without them. The applicant was punished twice by the chain of command during harassment, once by the immediate supervisor with a counselling statement, wherein the applicant had to write two papers; and then again by the alpha company and hospital commanders which lead to the resignation and injustice. This again was based on sexual orientation. Also, a DD Form 268 (Report to Suspend Favorable Personnel Actions (Flag) was altered by the company commander. b. Board Type and Decision: In a records review conducted on 05 July 2023, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the applicant's length, and the circumstances surrounding the discharge (Adjustment Disorder with IPV and MST and the applicant is 70% service connected for PTSD) outweighing the 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 15-180, and the narrative reason for separation to Secretarial Authority with a corresponding separation code to JFF. 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 600-8-24, Chapter 3-13 / DFS / General (Under Honorable Conditions) b. Date of Discharge: 28 May 2013 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 4 December 2012, the applicant was charged with: Charge I: Violating Article 90, UCMJ, two specifications: for willfully disobeying a lawful command to not handle narcotics or remove narcotics from the Omnicell, or words to that effect on or about 31 August 2012; and, for willfully disobeying a lawful command to not handle narcotics or remove narcotics from the Omnicell, or words to that effect on or about 1 September 2012. Charge II: Violating Article 92, UCMJ, for being derelict in the performance of duties in that the applicant willfully failed to provide medical care for patients placed under the applicant's care, as it was the applicant's duty to do, by preventing them from receiving their prescribed medication. Charge III: Violating Article 121, UCMJ, two specifications: for stealing Percocet, military property, of a value less than $500.00, the property of the United States Government on or about 29 August 2012; and, for stealing Percocet, military property, of a value less than $500.00, the property of the U.S. Government on or about 1 September 2012. (2) Legal Consultation Date: NIF (3) Basis for Separation: Pursuant to applicant's request for Resignation, In Lieu of Trial by Court-Martial under the provisions of Chapter 3, AR 600-8-24. (4) Separation Decision Date / Characterization: 9 May 2013 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Appointment: NIF b. Age at Appointment: / Education: 22 on entry to active duty / Bachelor's Degree c. Highest Grade Achieved / MOS / Total Service: O-3 / 66G, Obstetric and Gynecologic Nurse / 4 years, 9 months, 25 days d. Prior Service / Characterizations: NA e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWTSM, ASR g. Performance Ratings: 2 January 2009 - 2 May 2012 / Best Qualified 3 May 2012 - 2 May 2013 / Do Not Promote h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. Three Developmental Counseling Forms, for various acts of misconduct. DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 25 June 2012, reflects the applicant was flagged for adverse action (AA) effective 25 June 2012. DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 25 June 2012, reflects the applicant was flagged for drug abuse adverse action (UA) effective 25 June 2012. General officer memorandum of reprimand, dated 20 August 2012, reflects the applicant injured themself by spilling hot oil on their right hand while cooking. There is evidence that the applicant was intoxicated at the time of the accident. After the applicant was treated in the WBAMC emergency room for the applicant's injury, the applicant went to their place of work in the Labor and Delivery Unit and lied to a junior enlisted subordinate Soldier in order to obtain two Percocet tablets out of an inpatient Omnicell drug dispensing system for personal use. The applicant did this by telling the subordinate that the applicant "were in the system,"' even though the applicant then knew the applicant did not have a valid prescription for Percocet. The applicant further abused their authority as an officer by telling the subordinate to override the system to obtain the unauthorized medication. The applicant's bad judgment was compounded on the same day when the applicant abused their position as a staff nurse by obtaining a 72-hour sick call slip from a nurse midwife in the WBAMC Labor and Delivery Unit who was not authorized to give the applicant quarters. Military Police Report, dated 8 November 2012, reflects the applicant was apprehended for: controlled substance violations, opiates - possession of opiates (on post). CID Report of Investigation - Final (C), dated 15 January 2013, reflects an investigation established probable cause to believe the applicant committed the offenses of Larceny of Government Property and Wrongful use of Opiates, when the applicant illegally obtained and used Percocet from the Omnicell. Investigation established probable cause to believe the applicant committed the offense of Failure to Obey a General Order when the applicant violated a direct order not to be in close proximity to the Omnicell dispensing machine. A DA Form 4833 (Commander Report of Disciplinary or Administrative Action) reflects the applicant was referred on 28 January 2013 for Larceny of Government Property and Wrongful Possession of Percocet, and Failure to Obey a Lawful Order on 1 September 2012. An administrative separation was imposed on the applicant. A DA Form 4833 (Commander Report of Disciplinary or Administrative Action) reflects the applicant was referred on 22 May 2018 for Controlled Substance Violations, Opiates - Possession of Opiates, Failure to Obey a Lawful Order, and Larceny of Government Property on 1 September 2012. The unit was unable to retrieve records past 24 months per AR 600-8- 104 (AMHRR Management) and this CID action was closed due to no records available. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: A Veterans Affairs (VA) table of rated disabilities that reflects the applicant was rated 70 percent disability for PTSD with adjustment disorder unspecified. A VA problem list as of 17 April 2020, reflects the applicant's active health problems includes depression, PTSD, and anxiety. A VA appointments list reflects the applicant is being seen for mental health. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; VA table of rated disabilities; VA problem list; VA appointments; self-authored personal statement; Major R__'s Memorandum for Record (MFR); Sergeant K__'s Ice Complaint; personal request; officer leadership and diversion papers; two DA Forms 268; DA Form 4856. 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 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers. (1) Paragraph 1-23 provides the authorized types of characterization of service or description of separation. (2) Paragraph 1-23a, states an officer will normally receive an honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty, or the final revocation of a security clearance under DODI 5200.02 and AR 380-67 for reasons that do not involve acts of misconduct for an officer. (3) Paragraph 1-23b, states an officer will normally receive a general (under honorable conditions) characterization of service when the officer's military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 3 prescribes the rules for processing voluntary resignations. Except as provided in paragraph 3-1b, any officer of the RA or USAR may tender a resignation under the provisions of this chapter. SECARMY (or designee) may accept resignations and orders will be issued by direction of the CG, HRC. An officer whose resignation has been accepted will be separated on the date specified in DA's orders or as otherwise directed by the DA. An appropriate discharge certificate as specified by the CG, HRC, will be furnished by the appropriate commander at the time the officer is separated. The date of separation, as specified or directed, will not be changed without prior approval of HQDA nor can valid separation orders be revoked subsequent to the specified or directed date of separation. (5) Paragraph 3-9 (previously 3-13), outlines the rules for processing requests for resignation for the good of the Service in lieu of trial by a general court-martial. (6) Paragraph 3-9i, states an officer separated under this paragraph normally receives characterization of service of under other than honorable conditions. 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 "DFS" as the appropriate code to assign Officers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 3-13, in lieu of trial by court-martial. 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, in effect, the discharge should be upgraded to honorable due to the applicant endured domestic violence during active-duty service that resulted in a 3rd degree burn requiring a skin graft. The applicant provided an MFR from Major R__, dated 7 December 2018, this was the applicant's direct line supervisor from 2010-2013. Major R__ states in 2012 the applicant began to show subtle changes in work performance. It was unknown at the time that the applicant was in an abusive relationship. The applicant tried to cope with emotional pain and the stress of military life on the applicant's own. The applicant's stellar work ethic began to slack. Then the applicant sustained a life altering injury from the applicant's partner. In the applicant's effort to stay resilient, but keep the emotional pain a secret, the applicant attempted to obtain care but was labeled, treated poorly, and discriminated against. The applicant had been misdiagnosed multiple times when going for care at the Emergency Department which resulted in a delay of care of injuries. Once this delay of care occurred, the applicant's secret could no longer continue. The applicant confided to the command about the abusive relationship in hopes of support and compassion. However, the company leadership continued to discriminate the applicant due to the applicant's relationship choices. This outward disgust from the commander resulted in false claims of drug abuse, alcoholism, and eventually resulted in termination of active-duty service. The applicant attempted to receive the care that was deserved but was continually met with distain from the command and bias from the very health care system the applicant supported on a daily basis. There is no evidence in the AMHRR the applicant sought assistance for domestic violence outside of the unit. The applicant contends, in effect, the applicant was harassed by command and hospital staff which was solely based on sexual orientation resulting in improper medical care that led to PTSD, anxiety, and depression. The applicant provided an MFR from Major R__, dated 7 December 2018, as stated in the previous paragraph. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment and the AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The evidence of record shows the command attempted to assist the applicant in performing and conducting to Army standards by providing counseling and referral to the Army Substance Abuse Program (ASAP). The applicant contends, in effect, the DD Form 268 was altered by the company commander. The applicant provided two separate DA Forms 268 that reflect an adverse action (AA) Flag and a drug abuse adverse action Flag, however the code (U) for drug abuse adverse action was handwritten in. The applicant's AMHRR contains a DA Form 8003 (ASAP Enrollment), dated 25 June 2012, that reflects the applicant's commander referred the applicant to ASAP due to hangovers, minor injuries, decreased quality of work, absenteeism, improper use of drugs, and unusual excuses for absences. The commander used the DA Form 268 version from 1987 that did not contain the drug abuse adverse action Flag; however, the DA Form 268 version from 2012 lists the drug abuse adverse action (U) Flag which was before the applicant's discharge from the Army. AR 600-8-2 (Suspension of Favorable Personnel Actions) states initiate a drug abuse adverse action Flag following: in part, court-martial proceedings (immediately upon referral of charges or pretrial confinement); pending a nonpunitive memorandum of reprimand, censure, or admonishment; or other disciplinary action for drug related offenses. This Flag is initiated based on the adverse action resulting from the drug abuse-related incident. This Flag may not be initiated based on referral, screening, or enrollment into the ASAP. Analyst notes the applicant marked the Don't Ask Don't Tell box on the DD Form 293, however the applicant did not submit any evidence to support or substantiate why the applicant checked the box. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially mitigating diagnoses/experiences: The applicant held an in-service diagnosis of Adjustment Disorder. Post-service, she was initially service connected for Adjustment Disorder, currently service PTSD due to harassment by Command, IPV, and two MSTs. (2) Did the condition exist, or experience occur during military service? Yes. The applicant held an in-service diagnosis of Adjustment Disorder with IPV and MST. (3) Does the condition or experience actually excuse or mitigate the discharge. Partial. The Board's Medical Advisor determined that the medical condition and experience is partially mitigating. (4) Does the condition or experience outweigh the discharge? Yes. The Board concurred with the opinion of the Board's Medical Advisor, a voting member. As a result, the ADRB applied liberal consideration and found that the applicant's behavioral conditions (Adjustment Disorder, PTSD, IPV, and two MSTs) outweighed the applicant's misconduct - disobeying a lawful command, dereliction of duty, stealing Percocet - the basis for applicant's separation. b. Response to Contention(s): (1) The applicant requests an upgrade to honorable. The Board considered this contention during proceedings and determined the contention was valid and voted to upgrade the characterization of service based on the applicant two MSTs and the additional behavioral health diagnosis outline in 9a (1) (4) outweighing the applicant's misconduct - disobeying a lawful command, dereliction of duty, stealing Percocet - basis for separation. (2) The applicant contends, in effect, the applicant was harassed by command and hospital staff which was solely based on sexual orientation resulting in improper medical care that led to PTSD, anxiety, and depression. The Board considered the applicant's assertion of sexual orientation harassment but was unable to determine the contention because a review of the applicant's available records found no evidence the applicant sought assistance or reported the harassment. Also, the records do not contain any indication or evidence of arbitrary or capricious actions by the command. The evidence of record shows the command attempted to assist the applicant in performing and conducting to Army standards by providing counseling and referral to the Army Substance Abuse Program (ASAP). (3) The applicant contends, in effect, the DD Form 268 was altered by the company commander. The Board considered the applicant's assertion but ultimately did not address the contention due to an upgrade being granted as detailed in paragraphs 3c (1) and 9a (1) (4) of this document. c. The Board determined the discharge is inequitable based on the applicant's Adjustment Disorder, PTSD, IPV, and two MSTs mitigating the applicant's misconduct. 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 15-180, and the narrative reason for separation to Secretarial Authority with a corresponding separation code to JFF. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's two MST experiences outweigh the separation for - disobey, dereliction of duty and stealing Percocet. Thus, the prior characterization is no longer appropriate. (2) The Board voted to change the reason for the discharge to Secretarial Authority since the applicant's MSTs outweighed the basis for separation, thus the narrative reason for discharge is no longer appropriate. The SPD code associated with the new narrative reason for discharge is JFF. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: Honorable c. Change Reason / SPD code to: Secretarial Authority / JFF d. Change Authority to: AR 15-180 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 AR20200008872 1