1. Applicant's Name: a. Application Date: 9 July 2020 b. Date Received: 15 July 2020 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general (under honorable conditions). The applicant through legal counsel requests an upgrade to honorable. The applicant seeks relief contending, in effect, that she faced daily sexual harassment (jokes, comments, sexual innuendo, etc.) while in service ultimately leading to unsubstantiated and false rumors of adultery while in service, ultimately leading to her separation for service such treatment would never have survived scrutiny in today's Army due to the change in DOD Policy. The applicant contends she previously submitted an application to the board on 18 December 2018. The decision was authenticated on her application on 11 July 2019. She now requests reconsideration in light of new evidence, a letter from LTC J.S.P.B., and an in person hearing on the matter. She also requests that all exhibits previously submitted also be included in her reconsideration. In the applicant's prior records review, the applicant requested an upgrade of her general (under honorable conditions) discharge to honorable and to change the narrative reason for discharge and its corresponding codes. The counsel, on behalf of the applicant, seek relief contending in pertinent part and in effect, the applicant was diagnosed with service/combat-connected PTSD; therefore, there is the presumption of its connection to any alleged misconduct, and equity and propriety demand a relief. (The counsel-authored brief provided Statement of Facts (timeline of sequence of events.) The counsel asserts that an act or multiple acts of sexual harassment were committed against the applicant by the company commander, CPT D., that upon voicing the concerns, was retaliated against, in violation of the Military Whistleblower Protection Act and the current Policy on Sexual Harassment-had those policies been enforced at the time, it likely would have prevented separation. The discharge was improper, inequitable, and the resulting injustice, because the command's actions were arbitrary, capricious and erroneous, in light of the events leading to separation, the applicant's substantial contribution during service as a high caliber Soldier, including contributions since discharge. The applicant was unjustly hindered at furthering advancement in a career field. The Article 15 documentation clearly shows the command was reaching for anything to prosecute the applicant for following allegations and participation in the investigation against the company commander. The dates of the offenses occurred beginning of the year, while the imposition of the Article 15, a mechanism for speedy resolution and disposition of charges did not occur until immediately after the applicant's allegations. The applicant has suffered great unjustifiable embarrassment and malicious prosecution of the alleged misconduct in response to allegations against the command. Years have passed, but the issue is continuing to taint the applicant's name and causing great distress and embarrassment. Since discharge, the applicant flourished in the legal field-earning a degree in legal studies, and seeking to attend law school and serving in public office, but the current discharge inhibits the applicant's ability to attend law school and service in public office. The applicant also requests the removal of the investigation and Article 15 punishment, including restoring the rank of sergeant. In a records review conducted on 4 October 2021, and by a 4-1 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, post service accomplishments, prior periods of honorable service and the circumstances surrounding the discharge (OBHI and PTSD diagnoses). 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 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. Please see Section 10 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, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 25 February 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 11 February 2008 (2) Basis for Separation: The applicant was informed of the following reasons: for having been counseled on numerous occasions about her misconduct and had been punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for her misconduct; Her acts of misconduct ranged from failing to be at her appointed place of duty at the prescribed time on four occasions, disrespecting a superior commissioned officer, being derelict in the performance of her duty, and making a false official statement on two occasions; and It was in the best interest of the US Army that she be separated from the service, because her pattern of misconduct was not in keeping with the high standards that it took to be a Soldier in the US Army. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 13 February 2008 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 22 February 2008 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 December 2005 / 4 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 108 c. Highest Grade Achieved / MOS / Total Service: E-5 / 27D10, Paralegal Specialist / 4 years, 9 months, 19 days d. Prior Service / Characterizations: RA, 7 May 2003 to 30 November 2005 / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (28 September 2006 to 15 December 2007) f. Awards and Decorations: ARCOM-2, AAM, AGCM, NDSM, ICM; GWOTSM, KDSM, ASR, OSR-2, CAB g. Performance Ratings: 1 January 2006 to 31 December 2006, Among the Best h. Disciplinary Action(s) / Evidentiary Record: Memorandum, dated 22 October 2007, with its associated documents (numerous sworn statements), indicates an appointment of an investigating officer, a Commander's Inquiry, to investigate allegation made by SGT R. against company commander, CPT D. FG Article 15, dated 10 December 2007, for failing to go to her appointed place of duty at the prescribed time on four separate occasions on 5 April 2007, 13 April 2007, 13 July 2007, and 20 July 2007, behaving disrespectful towards MAJ J.F., being derelict in the performance of her duties on 25 October 2007, making false official statements on two separate occasions on 22 October 2007, and 27 October 2007, and wrongfully endeavoring to influence a witness testimony on 22 October 2007. The punishment consisted of a reduction to E-4, forfeiture of $1,039, and 45 days of extra duty (suspended). Negative counseling statements for failing to go to her appointed place of duty at the prescribed time on numerous occasions; being disrespectful towards a superior commissioned officer; failing to obey an order or regulation; and being derelict in the performance of her duties. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Department of Veterans Affairs, letter dated 9 May 2017, indicates the applicant has been awarded 30 percent service connected disability for PTSD based on Depressed Mood, Anxiety, Occupational and Social Impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; letter of support; letter from legal counsel; and DD Form 293, dated 17 December 2018, and attorney-authored brief with list of enclosures (attachments) ending with the applicant-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: The counsel on behalf of the applicant states, in effect, that since the applicant's discharge, she flourished in the legal field-earning a degree in legal studies, and seeking to attend law school and serving in public office. Her documentary evidence shows she earned a Bachelor of Science and Associate of Arts Degrees, and Paralegal and Legal Assistant certificate. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Service-member discharged from active military service within 15 years of the Service-member's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) Chapter 5 provides for the basic separation of enlisted personnel for the convenience of the government. Paragraph 5-3 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memorandums. Secretarial separation authority is normally exercised on a case-by-case basis. (6) 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. (7) 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. (8) 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. DISCUSSION 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 and to change the narrative reason for discharge and its corresponding codes. The applicant's AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of records indicated separation action was initiated against the applicant for having been counseled on numerous occasions about her misconduct and being punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for her misconduct; her acts of misconduct ranging from failing to be at her appointed place of duty at the prescribed time on four occasions, disrespecting a superior commissioned officer, being derelict in the performance of her duty, and making a false official statement on two occasions; and it was in the best interest of the US Army that she be separated from the service, because her pattern of misconduct were not in keeping with the high standards that it took to be a Soldier in the US Army. The applicant contends she was diagnosed with service/combat-connected PTSD; therefore, presenting the presumption of its connection to any alleged misconduct, was carefully considered. A careful review of the available record and the applicant's documentary evidence indicates the notable service-connected post-traumatic stress disorder symptoms existed, and the applicant contends they were contributing factors that led to her misconduct. Per the Board's Medical Officer, a voting member at the applicant's record review, based on the information available for review at the time in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV), notes indicate no BH diagnoses while on active duty. Post-service, the applicant has a 30% service-connected rating from the VA for PTSD and Major Depressive Disorder. In summary, although the applicant had a diagnosis of PTSD, it was not mitigating for the misconduct which led to separation from the Army. The applicant requests to change the reason for her separation and its corresponding codes; however, the narrative reason for her separation is governed by specific directives and as approved by the separation authority. The narrative reason specified by AR 635-5-1 for a discharge under Chapter 14, paragraph 14-12b is "Pattern of Misconduct," and the separation code is JKA. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. Insofar as changing the reentry code, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of 3. There is no basis upon which to grant a change to the reason or to the RE code. An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist. If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist. Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. The applicant requests that her rank be restored and the removal of the investigation and Article 15. The Army Discharge Review Board is not empowered to restore former Service member's grade or rank, nor a removal of an investigation or an Article 15 of a former Service member. The Board may only change the characterization or reason for discharge. If an applicant believes there is an error or injustice in her discharge, she may make an application to the Army Board for Correction of Military Records, using DD Form 149, which can be obtained online or from a Veterans Service Organization. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): On 4 October 2021, the morning of the hearing, applicant's counsel provided: an 18-page VA Benefits Explanation - that was added to the case file and considered by the Board. b. The applicant presented the following additional contention(s): Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence. c. Counsel / Witness(es) / Observer(s): 10. 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. The applicant was not diagnosed with a behavioral health condition in- service. Post-service, she is service connected for combat related PTSD; however, in February 2021 reported a MST related to sexual harassment. (2) Did the condition exist or experience occur during military service? Yes. While the applicant did not hold a behavioral health diagnosis in-service, the applicant is reporting MST related to sexual harassment in-service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. Based on liberal consideration the service connected PTSD and reported MST partially mitigate the basis of separation, FTRs and disrespect. However, false official statements, providing a CID ROI to another Soldier, and trying to influence two witnesses in an investigation are not. While the basis for separation is only partially mitigated, liberal consideration directs the Board to weight the misconduct against a MST when making a determination. (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, that mitigating MST/PTSD are often associated with the applicant's FTRs and disrespect. As a result, the ADRB applied liberal consideration and found that the BH conditions mitigated part of and outweighed the false statement, CID ROI provision, and witness coercion. b. The applicant contends she was diagnosed with service/combat-connected PTSD and the behaviors were contributing factors that led to her misconduct. The Board determined the contentions were valid and voted to upgrade the characterization of service due to PTSD mitigating the applicant's Patterns of Misconduct. A careful review of the available record and the applicant's documentary evidence indicates the notable service-connected post-traumatic stress disorder symptoms existed. c. The Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, post service accomplishments, prior periods of honorable service and the circumstances surrounding the discharge (OBHI and PTSD diagnoses). d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's MST/PTSD mitigated at part of the applicant's misconduct for disrespect, dereliction of duty, witness coaching, and false statement, and outweighed the rest. Thus the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change e. Change Authority to: AR 635-200, paragraph 14-12a 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 AR20210005014 9