1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 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, because of having an effeminate anatomy, the applicant was discharged. At five years old, a relative had the applicant's body changed by a doctor who was involved in black market operations. The drill sergeant warned the applicant the regular Army would chew the applicant up. The Sergeant Major (SGM) of the first unit informed the applicant the SGM would ensure the applicant was discharged upon arrival at the next duty station, Fort Bliss. Upon arriving at Fort Bliss in 2006, the applicant was deployed to Iraq. Except for one Article 15, received before the Fort Bliss deployment, the applicant's record was clean. The applicant has received numerous military honors, including an Army Good Conduct Medal. The psychological effects of combat stress were not taken into consideration when the applicant was discharged, and the Post-Traumatic Stress Disorder was underdiagnosed. No peers, squad, and unit ever associated with the applicant because of the anatomy. The applicant was shunned during the time in the service. During the reclass training in MOS 92W, the applicant had to be specially housed alone in a hotel because no one wanted to be around the applicant. Despite being advised by relatives, the applicant did not understand while pretending to be normal. The applicant was discharged once the command received sufficient evidence. The applicant does not have further evidence to present and requests for reimbursement of the vacation leave because of being ruthlessly and maliciously discharged, despite the back-to-back combat tours in Iraq. The applicant did not have enough dwell time after the first deployment and was not fully recovered when deployed again. b. Board Type and Decision: In a records review conducted on 22 June 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length, quality, combat service and prior honorable service. 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. 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: Pattern of Misconduct / AR 635-200, Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 11 June 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 29 April 2008 (2) Basis for Separation: The applicant was informed of the following reasons: On 21 October 2007, the applicant received a Field Grade Article 15 for missing movement and causing a negligent discharge of the weapon in the Containerized Housing Unit; on 20 February 2008, the applicant failed to be at the 0630-accountability formation at Stout Gym; and on 21 February 2008, the applicant failed to be at the 0430-accountability formation. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 29 April 2008 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 2 June 2008 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 October 2005 / 6 years b. Age at Enlistment / Education / GT Score: 27 / two years of college / 102 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92W10, Water Treatment Specialist / 4 years, 9 months, 15 days d. Prior Service / Characterizations: RA, 27 August 2003 - 12 October 2005 / HD e. Overseas Service / Combat Service: SWA / Kuwait-Iraq (1 November 2004 - 15 November 2005; 28 October 2006 - 8 December 2007) f. Awards and Decorations: ICM, ARCOM, AAM-2, AGCM, NDSM, GWOTSM, ICM-2CS, ASR, OSR-2 g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Three Developmental Counseling Forms for failing to go at the time prescribed to the appointed place of duty on two separate occasions and violating the mile radius set by the battalion by being more than 250 miles away from the unit, without proper authority. FG Article 15 dated 25 October 2007, for missing movement on 25 August 2007, and negligently discharging a weapon on 7 September 2007. The punishment consisted of a reduction to E-1; forfeiture of $700 pay (suspended); and extra duty and restriction for 45 days. Report of Mental Status Evaluation, dated 28 February 2008, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. The examiner commented there were no evidence of any mental disease or defect, which would warrant a disposition through medical/psychiatric channels. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 with self-authored statement. 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 14-12b, addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12b, pattern of misconduct. 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-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. 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 having an effeminate anatomy led to the discharge. The applicant did not submit any evidence, other than the applicant's statement, to support the contention. The applicant contends harassment, discrimination, and being ostracized by others and members of the chain of command and was ruthlessly and maliciously discharged. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends receiving many awards, including an AGCM and serving two back-to- back combat tours. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends the psychological effects of combat stress were not taken into consideration, and the Post-Traumatic Stress Disorder was underdiagnosed. The applicant did not submit any evidence, other than the applicant's statement, to support the contention the discharge resulted from any medical condition. The applicant's AMHRR contains no documentation of PTSD or any behavioral health diagnosis. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 28 February 2008, which indicates the applicant was mentally responsible and recognized right from wrong. The MSE does not indicate any diagnosis. The MSE was considered by the separation authority. The ARBA sent letters to the applicant at the address in the application on 24 February 2016 and on 2 August 2021, requesting documentation to support a PTSD diagnosis. The applicant replied to the first letter with having no additional evidence to present, but the second ARBA letter elicited no response from the applicant. The applicant contends the vacation leave accrued should be reimbursed. The issue the applicant submitted is not a matter upon which the Army Discharge Review Board grants a change in discharge. The issue raises no matter of fact, law, procedure, or discretion related to the discharge process. Further, the applicant's request does not fall within this board's purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. 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 asserts PTSD, which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant self-asserted having PTSD during military 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 self-asserted having PTSD at the time of military service, which is a potentially mitigating BH condition. However, there is no medical evidence to support applicant's asserted PTSD. Applicant was not diagnosed in service with any BH conditions and is not service connected by the VA for any BH conditions. And the applicant did not provide any medical evidence with a diagnosis of PTSD, so applicant's asserted PTSD does not provide any medical mitigation. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant's asserted PTSD outweighed the basis for applicant's separation - (missing movement, negligent discharge, FTR x 2) for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends the psychological effects of combat stress were not taken into consideration, and the Post-Traumatic Stress Disorder was underdiagnosed. 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 length, quality, combat service and prior period of honorable service outweighing the applicant's misconduct: missing movement, negligent discharge, FTR x 2 the basis for separation. (2) The applicant contends harassment, discrimination, and being ostracized by others and members of the chain of command was ruthlessly and maliciously discharged. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade to honorable being granted based off the applicant's length, quality, combat service and prior honorable service. (3) The applicant contends receiving many awards, including an AGCM and serving two back-to-back combat tours. The board considered this contention and determined that the applicant's request does not fall within this board's purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. (4) The applicant contends having an effeminate anatomy led to the discharge. The Board considered this contention non-persuasive during its deliberations due to an upgrade to honorable being granted based off the applicant's length, quality, combat service and prior honorable service. (5) The applicant contends the vacation leave accrued should be reimbursed. The board considered this contention and determined that the applicant's request does not fall within this board's purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. c. The Board determined the discharge is inequitable based on the applicant's length, quality, combat service and prior period of honorable service outweighing the applicant's misconduct of missing movement, negligent discharge, FTR x 2x. The applicant did not provide any medical evidence with a diagnosis of PTSD, so applicant's asserted PTSD does not provide any medical mitigation. However, the applicant may request a personal appearance hearing to address further issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's length, quality, combat service and prior period of honorable service outweighing the applicant's misconduct of missing movement, negligent discharge, FTR x 2x. 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 under the same pretexts, and 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: Yes b. Change Characterization to: Honorable 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 AR20210001865 1