1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: Yes 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. The applicant seeks relief contending, in effect, because of being a victim of sexual assault and wrongfully accused of extortion, the applicant suffers from PTSD, anxiety, and a depressed mood disorder. The extortion charge was dismissed, and the applicant resigned in lieu of a trial by a General Court-Martial. After being sexually assaulted by CPT J., the applicant was never medically evaluated to determine the mental and physical health. CPT J. sexually assaulted the applicant, and according to the medical records, the applicant suffered from the trauma of a discredited sexual assault victim. Because of the exposure to the unspeakable physical violence of the sexual assault, the applicant texted CPT J., which led to being in trouble with the command. The government misconstrued the applicant’s anger at the predator because of an enraged text to the offender, CPT J., demanding monies for the victimization. It resulted in court-martial charges being brought against the applicant, and naturally, being petrified about the court-martial process, the applicant decided to resign. The command overlooked and failed to consider the obvious fact the applicant experienced an alcohol-induced blackout during the assault and determined inexplicably, the applicant had consented to CPT J’s forced sexual acts. The applicant’s military career was destroyed by victimization the applicant never sought or otherwise deserved. The applicant was discharged with a UOTH characterization of service despite the service medical records indicating one or more symptoms of PTSD. Because the separation code “‘DFS’” is unjust and stems from a false charge, it should be deleted and replaced with the applicant’s positive record of service. The applicant further details the contentions in the application and in an allied legal brief provided by the counsel with the application. b. Board Type and Decision: In a records review conducted on 3 August 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board’s decision. (Board member names available upon request) 2. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: In Lieu of Trial by Court-Martial / AR 600-8-24, Paragraph 3-13 / DFS / Under Other Than Honorable Conditions b. Date of Discharge: 27 August 2014 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 18 February 2014, the applicant was charged with violating Article 127, UCMJ, for wrongfully communicating to CPT J., with an intent to unlawfully obtain something of value, a threat to injure the reputation by accusing CPT J. of rape in a report to law enforcement if CPT J. did not give the money and leave the assigned unit, on 2 September 2013. (2) Legal Consultation Date: 22 May 2014 (3) Basis for Separation: Pursuant to applicant’s request for Resignation, In Lieu of Trial by Court-Martial under the provisions of Chapter 3, paragraph 3-13, AR 600-8-24, and as agreed to in an accepted pretrial agreement. (4) Separation Decision Date / Characterization: 11 August 2014 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Appointment: 28 May 2012 / 3 years per ORB b. Age at Appointment: / Education: 24 / Bachelor’s Degree c. Highest Grade Achieved / MOS / Total Service: O-1 / 36A, Financial Manager / 8 years, 22 days d. Prior Service / Characterizations: USAR, 1 June 2006 – 25 March 2007 / HD RA, 26 March 2007 – 8 April 2010 / HD USAR-Inactive (SMP), 9 April 2010 – 15 May 2011 / NA USAR-Active (SMP), 16 May 2011 – 20 May 2011 / NA USAR-Inactive (SMP), 21 May 2011 – 22 May 2011 / NA USAR-Active (SMP), 23 May 2011 – 27 May 2011 / NA USAR-Inactive (SMP), 28 May 2011 – 29 May 2011 / NA USAR-Active (SMP), 30 May 2011 – 2 June 2011 / NA USAR-Inactive (SMP), 3 June 2011 – 27 May 2012 / NA e. Overseas Service / Combat Service: Germany, SWA / Iraq (16 October 2008 – 12 October 2009) f. Awards and Decorations: ARCOM, AAM-2, AGCM, NDSM, GWOTSM, ICM-CS, ASR, OSR-2 g. Performance Ratings: 19 May 2012 – 29 May 2014 / Unsatisfactory h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. Legal Opine for CID Report of Investigation, dated 6 February 2014, reflects an investigation established no probable cause existed to believe CPT J. committed the offense of rape of an adult by force, but there was probable cause to believe the applicant committed the offense of extortion and conduct unbecoming of an officer, in violations of Article 127 and Article 133, of the UCMJ, respectively. CID Report of Investigation - Final, dated 3 March 2014, reflects an investigation established probable cause to believe the applicant committed the offenses of conduct unbecoming of an officer and extortion by blackmail, and the applicant identified as a victim in the offense of rape of an adult by force was unfounded. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Health Records reflecting diagnoses of an adjustment disorder with anxiety and depressed mood, and adult sexual abuse, an “Axis I” diagnoses of an “Adjustment Disorder with MEF, history of Adult Sexual Abuse, rule out Depression, consider PTSD,” and “Axis IV” diagnosis of “History of Sexual Assault, Occupation, Relational.” A licensed clinical professional counselor letter, dated 2 September 2015, indicates the therapeutic counseling sessions with the applicant reveal symptoms that meet the diagnostic criteria for PTSD, and “two years post-trauma,” the applicant “now appears to be experiencing the full range of PTSD symptoms.” (2) AMHRR Listed: Memorandum for Record, dated 9 June 2014, reflects the applicant indicated being a victim of a sexual assault for which an unrestricted report was filed and believed the separation action was a direct or indirect result of the sexual assault. Report of Medical History, dated 11 June 2014, the applicant noted behavioral health issues and the examining medical physician noted in the comments section: The applicant, suffering from depression by a traumatic incident (sexual assault) was receiving counseling and therapy, and being treated with medications. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 with listed enclosures; and Legal Briefs; Medical records (5 March – 25 April 2014); Hagel Memorandum; OMPF separation file and records; three third-party statements; certificates; investigative records; and DD Form 214. 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) Paragraph 1-23c states a discharge under other than honorable conditions is an administrative separation from the service. A discharge certificate will not be issued. An officer will normally receive an under other than honorable conditions when he or she: Resigns for the good of the Service; is dropped from the rolls (DFR) of the Army in accordance with paragraph 5–9; (3) is involuntarily separated due to misconduct, moral or professional dereliction, or for the final revocation of a security clearance under DODI 5200.02 and AR 380–67 as a result of an act or acts of misconduct, including misconduct for which punishment was imposed; and, is discharged following conviction by civilian authorities. (5) 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 after the specified or directed date of separation. (6) 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. (7) 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 3-9 or 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 contends the narrative reason for the discharge needs to be changed. The applicant was separated under the provisions of Chapter 3, paragraph 3-13, AR 600-8-24, with an under other than honorable conditions discharge. 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 “DFS.” Army Regulation 635-8, Separation Processing and Documents, governs 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 exactly 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 to be entered under this regulation. The applicant contends the SPD code should be changed. The SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation and are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. The SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations. The SPD code specified by Army Regulations for a discharge under Chapter 3, paragraph 3-13, is “DFS.” The applicant contends being a victim of sexual assault and wrongfully accused of extortion. The applicant suffers from PTSD, anxiety, and a depressed mood disorder. The applicant provided several medical documents indicating a diagnosis of adjustment disorder with anxiety and depressed mood, and prescribed medication, and the symptoms meeting the criteria for PTSD. The applicant’s AMHRR is void of a mental status evaluation, but the examiner in the Report of Medical History, indicated the applicant was suffering from depression by a traumatic incident (sexual assault) and was receiving counseling and therapy treatment with prescribed medication. The applicant contends the government misconstrued the applicant’s anger and enraged text to the offender, demanding monies for the victimization, and the command overlooked and failed to consider the obvious fact the applicant experienced an alcohol-induced blackout during the sexual assault and determined inexplicably, the applicant had consented to offender’s forced sexual acts. The applicant’s AMHRR shows an “Axis IV” medical diagnosis which reflects a history of sexual assault, and the CID investigative report indicates, an investigation established the applicant identified as a victim in the offense of rape of an adult by force was unfounded. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the military career was destroyed by the victimization the applicant never sought or otherwise deserved and the record of service should be replaced with the positive record of service. 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: Adjustment Disorder, Anxiety, Major Depressive Disorder, PTSD, and MST. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant’s PTSD related to MST, Adjustment Disorder, Anxiety, Major Depressive Disorder, and Depression existed during service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the applicant’s Adjustment Disorder, Anxiety, Major Depressive Disorder, PTSD, and MST do not mitigate the applicant’s extortion offenses as none of these conditions have a natural sequela with extortion or interfere with the ability to distinguish between right and wrong. (4) Does the condition or experience outweigh the discharge? No. Based on liberally considering all the evidence before the Board, to include the Board Medical Advisor opine, the Board determined that the applicant’s PTSD, MST, Major Depressive Disorder, Anxiety, Adjustment Disorder, and Major Depressive Disorder do not outweigh the applicant’s medically unmitigated offense – extortion. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs to be changed. The Board considered this contention and determined the applicant’s narrative reason for discharge is appropriate as the weight of the evidence supports the applicant requested to be discharged under the provisions of Chapter 3, AR 600-8-24, in Lieu of Trial by Court-Martial for violation of Article 127 (Extortion) and the convening authority approved that request. Therefore, the applicant’s narrative reason for discharge is appropriate. (2) The applicant contends the SPD code should be changed. The Board considered this contention and determined that the applicant received the appropriate SPD code at the time of separation for the discharge specified by AR 600-8-24, Chapter 3, Paragraph 3-13 is “DFS” as there is insufficient evidence in the applicant’s record or provided by the applicant to warrant a change to the SPD code. Therefore, no change is warranted. (3) The applicant contends being a victim of sexual assault and wrongfully accused of extortion, the applicant suffers from PTSD, anxiety, and a depressed mood disorder. The Board considered this contention and acknowledged the applicant’s MST; however, the evidence in the file supports the applicant committed the misconduct of extortion. The applicant’s PTSD, MST, Major Depressive Disorder, Anxiety, Adjustment Disorder, and Major Depressive Disorder do not have a nexus with extortion or blackmail, nor do they excuse the misconduct. Thus, the applicant was properly and equitably discharged. (4) The applicant contends the government misconstrued the applicant’s anger and enraged text to the offender, demanding monies for the victimization, and the command overlooked and failed to consider the obvious fact the applicant experienced an alcohol-induced blackout during the sexual assault and determined inexplicably, the applicant had consented to offender’s forced sexual acts. The Board considered this contention and acknowledged the applicant’s MST; however, the applicant’s sexual assault trauma does not excuse or mitigate the applicant’s basis for separation - extortion. Thus, the applicant was properly and equitably discharged. (5) The applicant contends the military career was destroyed by the victimization the applicant never sought or otherwise deserved and the record of service should be replaced with the positive record of service. The Board considered this contention and determined that 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. In light of the current evidence of record, the Board determined the applicant’s discharge was appropriate. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the 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 not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant’s PTSD, MST, Major Depressive Disorder, Anxiety, Adjustment Disorder, and Major Depressive Disorder did not excuse or mitigate the basis of separation - extortion. Therefore, the Board determined that the discharge is proper and equitable and no upgrade to the discharge is warranted as the applicant’s misconduct of extortion was below that level of satisfactory military service to warrant a General discharge. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, as the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change 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 AR20210001703 1