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: The current characterization of service for the period under review is honorable. The applicant requests an upgrade to narrative reason. The applicant seeks relief contending, in effect, having served in uniform for four years, the applicant has gained a deep appreciation for the immense responsibility Army personnel accept in service to the country every single day around the world, and being a part of the effort was an honor and a privilege. The applicant desires to have rank reinstated from E-3 to E-4. The applicant claims the applicant’s rank and discharge were improperly affected because of interactions with a first sergeant which unjustifiably degraded and discharged the applicant from the Army. The applicant claims the interactions began professional, but soon, the first sergeant began making inappropriate sexual gestures toward the applicant which gradually became worse. In 2012, the applicant claims that the interactions reached a point where the applicant was challenged to agree with the first sergeant’s sexual request, or be singled out for unwarranted punishment. The applicant claims when the applicant did not abide by the request, the first sergeant used power to put pressure on the applicant to oblige. First, the first sergeant degraded the applicant’s rank and gave the applicant extra duty. Then, when the applicant did not obey the unethical request, the first sergeant took it to the next level by discharging the applicant from the Army, blaming it on the applicant having missed morning formation. The applicant claims that missing morning formation was not because of any delinquency, it was due to the severe PTSD symptoms and hearing loss the applicant experienced after almost being killed by a rocket in Iraq in 2011. The applicant claims during the applicant’s service in Iraq, the applicant received a Combat Action Badge and an Army Commendation Medal for working with a special troop battalion of 2BCT and helping to save a convoy from eight IEDs. The applicant claims after returning from Iraq, the applicant began to have severe symptoms of PTSD and began to notice the ability to hear had been significantly compromised. Because of this, the applicant claims that it became difficult for the applicant to hear the morning alarm. The applicant claims aside from degrading the applicant’s rank and discharging the applicant, the abuse and sexual harassment the applicant received from the first sergeant has caused an exacerbation of the applicant’s PTSD. The applicant is still receiving therapy for these symptoms today. In a records review conducted on 30 June 2022, 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) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Pattern of Misconduct / AR 635-200, Chapter 14-12b / JKA / RE-3 / Honorable b. Date of Discharge: 8 April 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 March 2013 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 12 March 2013, the applicant was disrespectful to 1SG C. F. by interrupting as the 1SG spoke to the applicant and arguing with the 1SG about going to Behavioral Health when directed by the 1SG to do so. On or about 22 February 2013, the applicant failed to report for 0630 accountability formation at Building 7525A. On or about 1 February 2013, the applicant failed to report for 0630 accountability formation at Tiger Field. On or about 27 January 2013, the applicant failed to report for 0900 extra-duty at Building 7525A. On or about 25 and 28 January 2013, the applicant willfully failed to remain awake while on extra duty, as it was the applicant’s duty to do. On or about 24 January 2013, the applicant was disrespectful in deportment toward SGT H. C., a noncommissioned officer then in the execution of office, by disregarding SGT H. C. as SGT H. C. gave the applicant instructions. On or about 3 January 2013, the applicant failed to report for 0630 accountability formation at Building 7525A. On or about 12 December 2012, the applicant failed to report for 0600 accountability formation at Building 8004. On or about 4 December 2012, the applicant failed to report for 0630 accountability formation at Building 7525A. One or about 28 November 2012, the applicant failed to report for 0630 accountability formation at Building 7525A. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 27 March 2013 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 2 April 2013 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 October 2009 / 3 years, 20 weeks b. Age at Enlistment / Education / GT Score: 24 / Bachelor’s Degree / 101 c. Highest Grade Achieved / MOS / Total Service: E-4 / 09L10, Translator Aide / 3 years, 6 months, 8 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (4 April 2011 – 1 January 2012) f. Awards and Decorations: ARCOM, AAM-2, ASUA, AGCM, NDSM, GWOTEM, GWOTSM, ICM-CS, ASR, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 16 January 2013, for failing to go at the time prescribed to the appointed place of duty on or about 28 November and 4 and 12 December 2012 and 3 January 2013. The punishment consisted of a reduction to E-3; forfeiture of $470 pay per month for one month (suspended); and, extra duty for 14 days. Record Of Supplementary Action Under Article 15, UCMJ, dated 29 January 2013, the suspended portion of the punishment imposed on 16 January 2013, was vacated for: Article 86, failing to go at the time prescribed to the appointed place of duty on or about 24, 25, 27 and 28 January 2013. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 12 March 2013, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with Adjustment Disorder with Mixed Emotional Features. The applicant provided a letter from JC Center for Psychiatric Services, dated 24 January 2018, which reflects the applicant has been in professional care for treatment of PTSD, Mood Disorder and ADHD which the applicant described trauma related to the applicant’s time while in the military. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; JC Center for Psychiatric Services Letter. 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) 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. (4) 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. (5) 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 narrative reason. The applicant’s record of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests restoration of rank. The applicant’s requested change to the DD Form 214 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. The applicant contends being sexually harassed and discriminated by the first sergeant and members of the chain of command. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command regarding this contention. The applicant contends suffering from PTSD. The applicant’s AMHRR shows the applicant underwent a mental status evaluation (MSE) on 12 March 2013, which indicates the applicant was mentally responsible and was able to recognize right from wrong. The applicant was diagnosed with Adjustment Disorder with Mixed Emotional Features. The MSE was considered by the separation authority. The applicant provided a letter from JC Center for Psychiatric Services, dated 24 January 2018, which reflects the applicant has been in professional care for treatment of PTSD, Mood Disorder and ADHD which the applicant described trauma related to the applicant’s time while in the military. The applicant contends good service, including a combat tour. The Board considered the applicant’s service accomplishments and the quality 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. Applicant was diagnosed in service with Adjustment Disorder, Unspecified Anxiety Disorder, and Depression. Applicant is also diagnosed and service connected by the VA with PTSD and has been diagnosed post service by the VA with a psychotic condition all of which may mitigate the basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed in service with Adjustment Disorder, Unspecified Anxiety Disorder, and Depression. Applicant is also diagnosed and service connected by the VA with PTSD. Service connection establishes that applicant's PTSD existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor determined that the applicant’s PTSD partially mitigates the basis of separation. The Board's Medical Advisor opined that given the nexus between PTSD and avoidance as well as difficulty with authority, applicant’s PTSD partially mitigates applicant’s FTRs and disrespect. Further, the nexus between applicant’s Depression and applicant’s sleep issues, applicant’s Depression partially mitigates the applicant’s failure to remain awake on extra duty. (4) Does the condition or experience outweigh the discharge? No. The Board, after applying liberal consideration, concurred with the Board’s Medical Advisor, and voted that while the applicant’s discharge has already been upgraded to HD, the applicant’s PTSD and OBH do not outweigh the partially mitigated misconduct to warrant a change to the applicant’s discharge narrative or RE code. b. Response to Contention(s): (1) The applicant contends being sexually harassed and discriminated by the first sergeant and members of the chain of command. The Board considered this contention, but determined that the Army has many legitimate avenues available to service members requesting assistance with discrimination and harassment, and the weight of the evidence does not support a Board determination that applicant sought or was denied any assistance regarding this contention, nor that the Command acted in an arbitrary or capricious manner regarding this contention, and therefore no change to applicant’s discharge is warranted based on this contention. (2) The applicant contends suffering from PTSD. The Board liberally considered this contention, but determined that applicant’s current discharge is proper and equitable. (3) The applicant contends good service, including a combat tour. The Board took into account the applicant’s length and quality of service, to include combat service, during deliberations but ultimately voted that no further relief was warranted. (4) The applicant contends that the discharge is inequitable, The Board considered this contention but determined that while the applicant’s misconduct was partially mitigated, the applicant’s current discharge is both proper and equitable. Further, the partial medical mitigation does not warrant a change to Secretarial Authority because the applicant was involuntarily separated for misconduct, and the applicant’s PTSD and other BH diagnoses do not excuse or fully mitigate the applicant’s responsibility for the misconduct. Therefore, the Board determined that Secretarial Authority, which is exercised sparingly when no other authority is available, is not warranted because the Misconduct (Minor Infractions) narrative is both proper and equitable in this case. 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 reason for discharge or accompanying SPD code, because the applicant’s misconduct was partially mitigated, and warranted a change from applicant’s original GD to a HD discharge characterization, but did not warrant any change to the applicant’s discharge narrative. (2) 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 AR20210002795 1