1. Applicant's Name: a. Application Date: 28 June 2020 b. Date Received: 2 July 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is uncharacterized. The applicant requests an upgrade to honorable conditions and a narrative reason change. The applicant seeks relief contending, in effect, the discharge was inequitable and improper because of the events which happened before the discharge. The applicant requests the narrative reason for separation be changed to disability. The applicant suffered from diagnosed post-traumatic stress disorder (PTSD), anxiety, depression, and bilateral ankles and leg fractures, diagnosed by medical personnel at Fort Benning. The applicant experienced numerous instances of harassment, sexual assault, and threats of assault by the applicant's peers and drill sergeant. The applicant is coming forward because the applicant confided in a friend. Because of recent events, the applicant believes the applicant must speak about the nature of the sexual assault the applicant experienced while training at Fort Benning. The applicant was ashamed of what happened. The applicant worked in law enforcement and came to terms with the assault. The applicant was unaware of the numerous laws broken in terms of assault, harassment, communicating threats, and sexual assault. The first incident of sexual assault occurred while training in the field for battle formations. Drill Sergeant (DS) A. L. instructed the applicant to lay on the ground in front of the company, but the applicant did not desire to because of the pain from the applicant's leg fracture and bilateral ankle injuries. DS A. L. ordered the applicant to lay on the ground or receive an Article 15. The applicant laid on the ground. Drill Sergeant A. L. then told the company DS A. L. was demonstrating how to frisk and check a dead body. DS A. L. then was on top of the applicant and started roughly touching the body, including the applicant's penis and buttocks. DS A. L. then began rubbing up and down on the applicant, while searching the applicant in front of the company. The applicant was humiliated, uncomfortable, and violated. The applicant was afraid to come forward because of the threat of Article 15. The applicant suffered from PTSD, depression, and anxiety. The applicant went to Community Mental Health Service (CMHS) to obtain help and the applicant was administratively separated as a result. This incident and condition contributed to the applicant's discharge. The applicant was not treated properly based on military regulations relating to sexual assault trauma and PTSD. The condition was treated as an adjustment disorder, with depression and anxiety unrelated to the assault. The applicant believed the applicant's voice would not be heard and was told to accept the discharge by the counselor. The condition carries more weight than other factors because if the applicant had been treated for the sexual assault trauma or moved to another company, the applicant could have been a successful Soldier. The applicant's leadership failed the applicant and decided not to put in the work to help the applicant overcome a hostile working environment. After the sexual assault, the applicant was threatened with being beat up by peers. The applicant's anxiety and depression only grew deeper because of the constant threats. This is a great injustice, and the applicant cannot be silent anymore. The applicant will pursue this issue no matter the cost. b. Board Type and Decision: In a records review conducted on 07 June 2023, and by a 5- 0 vote, the board determined the discharge is inequitable based on the applicant's adjustment disorder and MST experience outweighing the applicant's basis of separation - Condition, not a Disability. Therefore, the Board voted to grant relief in the form of an upgrade of characterization of service to Honorable. 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: Condition, not a Disability / AR 635-200, Paragraph 5-17 / JFV / RE-3 / Uncharacterized b. Date of Discharge: 16 December 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 6 December 2016 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant self-referred to Community Mental Health Services (CMHS) because of mental health issues. The applicant was formally counseled and informed the mental health issues were interfering with the applicant's ability to perform the duties. The applicant subsequently was counseled and evaluated by a licensed psychiatrist and diagnosed with an adjustment disorder with mixed anxiety and depressed mood. The psychiatrist recommended the applicant have no access to weapons and ammunition and the applicant be separated from the Army expeditiously. The applicant was afforded the opportunity to overcome the deficiencies but failed to do so. (3) Recommended Characterization: Uncharacterized (4) Legal Consultation Date: On 6 December 2016, the applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 8 December 2016 / Uncharacterized / The separation authority had the option to retain the applicant and transfer the applicant to another unit but directed separation. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 September 2016 / 5 years b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 133 c. Highest Grade Achieved / MOS / Total Service: E-3 / None / 3 months, 4 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: None / The applicant's AMHRR reflects award of the NDSM, however, the award is not reflected on the DD Form 214. g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Two Developmental Counseling Forms for being referred to Community Mental Health Service and being recommended for Chapter 5-17, AR 635-200. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Department of Veterans Affairs (VA) Rating Decision, dated 25 September 2020, reflecting the ava rated the applicant 30 percent service-connected disabled for PTSD (also claimed as depression and anxiety); 10 percent for left hip trochanteric pain syndrome bursitis; and 10 percent for non-allergic rhinitis (claimed as sinusitis). Department of Veterans Affairs (VA) letter, dated 16 March 2021, reflecting the applicants was rated 50 percent combined service-connected disabled. (2) AMHRR Listed: Two Physical Profiles reflects the applicant had the following medical conditions: Dental Condition Adjustment Disorder Lower Leg Injury/Pain Report of Mental Status Evaluation, dated 21 November 2016, 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 applicant had been screened for PTSD and mild traumatic injury (mTBI) with negative results. The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. The command was advised to consider the influence of these conditions. The applicant was assessed for PTSD, Depression, TBI, SUD's, via BHDP, and sexual assault, which occurred while in the military, and screened negative for all of these aforementioned conditions. The applicant was diagnosed with adjustment disorder with mixed anxiety and depressed mood. This disorder was of sufficient severity to interfere with the Soldier's ability to function in the military. The applicant was recommended for Chapter 5-17, AR 635-200. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293, with continuation sheet; third party character reference; separation documents; in-service medical documents; Soldier Performance Evaluation Law Enforcement training certificates; Massachusetts Criminal Offender Record Information; North Carolina Justice Academy transcripts; General Certification Deputy Sheriff, and two VA letters. 6. POST SERVICE ACCOMPLISHMENTS: The applicant completed various training in law enforcement, served as Deputy Sheriff, and had no criminal record. 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 3-9 states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status. (4) Chapter 5 provides for the basic separation of enlisted personnel for the convenience of the government. (5) Paragraph 5-1 states a Soldier being separated under this paragraph will be awarded a characterization of service of honorable, general (under honorable conditions), or an uncharacterized description of service if in entry-level status. A general (under honorable conditions) discharge is normally inappropriate for individuals separated under the provisions of paragraph 5-14 (previously paragraph 5-17) unless properly notified of the specific factors in the service that warrant such characterization. (6) Paragraph 5-14 (previously paragraph 5-17) specifically provides that a Soldier may be separated for other physical or mental conditions not amounting to a disability, which interferes with assignment to or performance of duty and requires that the diagnosis be so severe that the Soldier's ability to function in the military environment is significantly impaired. (7) Glossary defines entry-level status for RA Soldiers is the first 180 days of continuous AD or the first 180 days of continuous AD following a break of more than 92 days of active military service. 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 "JFV" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 5-14 (previously Chapter 5-17), Condition, not a Disability. 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's Army Military Human Resource Record (AMHRR) includes evidence the applicant, while in training status, was evaluated by competent medical authority and determined the applicant had an adjustment disorder with mixed anxiety and depressed mood. It was determined this condition would prevent the applicant from completing training. The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions, at the time, of Chapter 5, paragraph 5-17, AR 635-200 with an uncharacterized discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Condition, not a Disability," and the separation code is "JFV." 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 diagnosed PTSD, anxiety, and depression caused by military sexual trauma, assault, and harassment, affected behavior which led to the discharge. The applicant provided medical documents indicating the VA diagnosed the applicant with PTSD; a rating of 30 percent service-connected disability for PTSD; and 50 percent combined rating. The applicant's AMHRR shows the applicant underwent a mental status evaluation (MSE) on 21 November 2016, which indicates the applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. The applicant had been screened for PTSD and mTBI with negative results. The applicant was assessed for PTSD, Depression, TBI, SUD's, and sexual assault, which occurred while in the military and screened negative for all the aforementioned conditions. The applicant was diagnosed with adjustment disorder with mixed anxiety and depressed mood. The MSE was considered by the separation authority. The applicant contends harassment by members of the unit. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. The applicant contends seeking assistance from Behavioral Health and the applicant was separated as a result. The applicant's AMHRR reflects the applicant initially was self-referred to CMHS. The applicant was evaluated by a licensed psychiatrist and diagnosed with an adjustment disorder with mixed anxiety and depressed mood. The psychiatrist recommended separation under Chapter 5-17, AR 635-200. The applicant contends the command failed the applicant by not transferring the applicant to another company for rehabilitation. Army Regulation 635-200, paragraph 1-17d (2), entitled counseling and rehabilitative requirements, states the separation authority may waive the rehabilitative requirements in circumstances where common sense and sound judgment indicate such a transfer will serve no useful purpose or produce a quality, Soldier. In the applicant's case, the separation authority did not specifically waive a rehabilitative transfer, but to retain and transfer the applicant to another unit was an option for the separation authority and the separation authority directed separation with an uncharacterized discharge. The applicant requests the discharge be changed to a disability discharge. 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 completing various training in law enforcement, serving as Deputy Sheriff, and not having a criminal record. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in- service misconduct was an aberration and not indicative of the member's overall character. The third-party statement provided with the application speak highly of the applicant. It recognizes the applicant's good conduct after leaving the Army. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command 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: PTSD (Due to symptoms overlap, the Adjustment DO diagnoses are subsumed under the PTSD diagnosis). (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found VA service connection of 50% establishes that the PTSD occurred during active duty. (3) Does the condition or experience actually excuse or mitigate the discharge? N/A. The Board's Medical Advisor applied liberal consideration and opined that the applicant's 5-17 separation was proper and equitable. However, the advisor recommends that his discharge characterization be changed from Uncharacterized to Honorable because, in the writer's opinion, if the applicant had not experienced MST while in basic training, it is very likely he would have been able to complete his training and would have been free to pursue his career in the Army. (4) Does the condition or experience outweigh the discharge? Yes. The Board concurred with the opinion of the Board's Medical Advisor, a voting member. As a result, the ADRB applied liberal consideration and found that the applicant's Adjustment DO and MST outweighed the applicant's basis for separation - Condition, not a Disability occasions - because of the nexus between PTSD and self-medicating with illicit substances b. Response to Contention(s): (1) The applicant contends an upgrade to honorable and narrative reason change. The Board considered this contention and determined a narrative reason upgrade was warranted because based on the applicant's MST experience and adjustment disorder outweigh the applicant's basis of separation - condition, not a disability. The applicant is also 30 percent service-connected for PTSD. (2) The applicant contends diagnosed PTSD, anxiety, and depression caused by military sexual trauma, assault, and harassment, affected behavior which led to the discharge. The Board liberally considered this contention, however, did not make a determination as the Board already voted to upgrade to Honorable as referenced in paragraph 9b (1) above. (3) The applicant contends harassment by members of the unit. The Board considered this contention and the totality of the applicant's service record during proceedings, but ultimately did not address the contention due to an upgrade being granted as referenced in paragraph 9b (1) above. (4) The applicant contends seeking assistance from Behavioral Health and the applicant was separated as a result. The Board considered this contention and determined the applicant's AMHRR reflects the applicant initially was self-referred to CMHS. The applicant was evaluated by a licensed psychiatrist and diagnosed with an adjustment disorder with mixed anxiety and depressed mood. The psychiatrist recommended that the applicant be separated under Chapter 5-17, AR 635-200. (5) The applicant contends the command failed the applicant by not transferring the applicant to another company for rehabilitation. The Board considered this contention but determined that because the Army has many legitimate avenues available to service members experiencing difficult challenges and Army Regulation 635-200, paragraph 1-17d (2), entitled counseling and rehabilitative requirements, states the separation authority may waive the rehabilitative requirements in circumstances where common sense and sound judgment indicate such a transfer will serve no useful purpose or produce a quality, Soldier. In the applicant's case, the separation authority did not specifically waive a rehabilitative transfer, but to retain and transfer the applicant to another unit was an option for the separation authority and the separation authority directed separation with an uncharacterized discharge. (6) The applicant requests the discharge be changed to a disability discharge. The Board considered this contention and determined 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. (7) The applicant contends completing various training in law enforcement, serving as Deputy Sheriff, and not having a criminal record. The Board considered this contention and determined the Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. c. The Board determined the discharge is inequitable based on the circumstances surrounding the applicant's discharge (MST, adjustment diagnoses and 30% service connect for PTSD). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the MST experience and anxiety disorder out weight the applicant's separation. 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, 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: 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 AR20210005435 1