1. Applicant's Name: a. Application Date: 30 October 2020 b. Date Received: 2 November 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is uncharacterized. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, an upgrade would allow the applicant to possibly be eligible for veteran benefits and be a proud veteran. The applicant has attempted to return to service as an officer but was not allowed. The discharge has also negatively affected the applicant's employment opportunities. The applicant reports going AWOL due being inappropriately touched multiple times by a noncommissioned officer instead of reporting it. The applicant admitted to being homosexual instead of being separated for being AWOL. In a records review conducted on 3June 2022, and by a 5 - 0 vote, the Board determined the discharge is inequitable based on the circumstances surrounding the discharge (MST diagnosis). 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, Chapter 15, and the narrative reason for separation to Secretarial Authority with a corresponding separation code to JFF. 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: Secretarial Authority / AR 635-200, Chapter 5 / JKQ / RE-3 / Uncharacterized b. Date of Discharge: 27 April 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 5 April 2007 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant admitted being a homosexual and could not abide by the Army's Policy on homosexuality. The applicant created a rebuttable presumption that indicated the applicant engaged in, attempted to engage in, or have a propensity to engage in homosexual or bisexual acts. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: The applicant waived the opportunity to speak with counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 20 April 2007 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 October 2006 / 7 years, 6 weeks (ARNG) b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 102 c. Highest Grade Achieved / MOS / Total Service: E-2 / None / 6 months, 9 days d. Prior Service / Characterizations: ARNG, 2 October 2006 - 27 April 2007 / GD (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 29 March 2007, reflects the applicant was absent without leave from on or about 16 February 2007, to on or about 6 March 2007. The punishment consisted of reduction to private/E-1; forfeiture of $300; and extra duty and restriction for 14 days. i. Lost Time / Mode of Return: AWOL X 17 days (17 February 2007 - 5 March 2007) / NIF j. Diagnosed PTSD / TBI / Behavioral Health: A Report of Mental Status Evaluation, dated 15 March 2007, reflects the applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. The applicant was diagnosed with Adjustment Disorder with Mixed Disturbances of Emotions and Conduct. On 16 December 2010, the applicant's narrative reason for separation was changed from Homosexual Admission to Secretarial Authority and the characterization was changed from General (Under Honorable Conditions) to uncharacterized because the applicant was separated while in an entry-level status (less than 180 days of service). A search of the criminal file indexes revealed no records pertaining to applicant in reference to a sexual assault. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149, Personal Statement 6. POST SERVICE ACCOMPLISHMENTS: The applicant has earned two graduate degrees. 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 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. A general discharge under honorable conditions discharge is not authorized under ELS conditions and an honorable discharge is rarely ever granted. An HD may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty. A Soldier is in an ELS if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action. (4) Chapter 15, previously Chapter 5, 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 memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. 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's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable. On 16 December 2010, the applicant's narrative reason for separation was changed from Homosexual Admission to Secretarial Authority and the characterization was changed from General (Under Honorable Conditions) to uncharacterized because the applicant was separated while in an entry-level status. A Soldier is in an ELS for the first 180 days of continuous active duty. The purpose of the entry- level status is to provide the Soldier a probationary period. Army Regulation 635-200 also provides, except in cases of serious misconduct that a Soldier's service will be uncharacterized when her separation is initiated while the Soldier is in ELS. An uncharacterized discharge is neither positive nor negative and it is not meant to be a negative reflection of a Soldier's military service. It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise. A general discharge under honorable conditions discharge is not authorized under ELS conditions and an honorable discharge is rarely ever granted. An HD may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty. The applicant contends an upgrade would allow the applicant to possibly be eligible for veteran benefits and be a proud veteran. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant contends the discharge has also negatively affected employment opportunities. The Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. The applicant reports going AWOL due being inappropriately touched multiple times by a noncommissioned officer instead of reporting it. 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? No. The Board's Medical Advisor, a voting member, reviewed DoD and VA medical records and found no mitigating BH diagnoses on the applicant. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused or mitigated a discharge. (2) Did the condition exist, or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contentions: (1) The applicant contends an upgrade would allow the applicant to possibly be eligible for veteran benefits and be a proud veteran. The Board determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare, or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. (2) The applicant contends the discharge has negatively affected employment opportunities. The Board does not grant relief to gain employment or enhance employment opportunities. (3) The applicant reports going AWOL due being inappropriately touched multiple times by a noncommissioned officer instead of reporting it. The Board determined that this contention was valid and voted to upgrade the characterization of service due to MST mitigating the applicant's AWOL charge. c. The Board determined the discharge is inequitable based on the circumstances surrounding the discharge (MST diagnosis). d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant experience an MST which mitigated the applicant's misconduct of AWOL. 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: Secretarial Authority / JFF d. Change RE Code to: No Change e. Change Authority to: AR 635-200, Chapter 15 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 AR20210008225 1