1. Applicant's Name: a. Application Date: 9 December 2021 b. Date Received: 9 December 2021 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant was wrongfully discharged for homosexual admission as retaliation for getting the first sergeant removed from duty and forced into retirement for sexual assault. For nearly 10 years, beginning in 1992 the first sergeant assaulted the applicant and controlled the applicant's promotions. The applicant was married to a fellow Soldier for 15 years, however in a separated status. The applicant served for 15 pretty perfect years; however, the applicant's whole life was ripped away. The applicant has suffered for nearly 30 years and would like to recover. The applicant is currently 100 percent service connected due to military sexual trauma related to post-traumatic stress disorder (PTSD) due to the years of abuse the applicant endured which ultimately led to being discharge. b. Board Type and Decision: In a records review conducted on 12 July 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the reversal of the Don't Ask, Don't Tell policy. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. As there were no Reasons/SPD Codes/RE-codes listed on the applicant's discharge paperwork, due to being in the Army Reserves, no upgrade actions are available for these items. 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: NIF / AR 135-178, NIF / NIF / NIF / Under Other Than Honorable Conditions b. Date of Discharge: 14 May 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 March 2006 / Indefinite b. Age at Enlistment / Education / GT Score: 33 / High School Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-6 / 02C30, Army Baritone or Euphonium Player / 15 years, 2 months, 21 days d. Prior Service / Characterizations: USAR, 24 February 1992 - 1 January 2001 / HD USAR, 2 January 2001 - 10 March 2006 / HD (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: The applicant's AMHRR reflects award of three ARCOMs. g. Performance Ratings: October 1998- September 2001 / Among The Best October 2001 - September 2003 / NIF October 2003 - September 2004 / Among The Best h. Disciplinary Action(s) / Evidentiary Record: Orders 07-134-00005, dated 14 May 2007, reflects the applicant was discharged from the U.S. Army Reserve (USAR) Under Other Than Honorable Conditions effective 14 May 2007. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Veterans Affairs Disability rating decision, dated 5 July 2022, reflecting the applicant's 100 percent disability for PTSD was continued and the applicant has permanent and total disability status. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: Online DD Form 293; DD Form 149; two third party statements; Veteran Affairs Disability rating decision. 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 135-178 sets forth the policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. The separation policies throughout the different Chapters in this regulation promote the readiness of the Army by providing an orderly means to judge the suitability of persons to serve on the basis of their conduct and their ability to meet required standards of duty performance and discipline. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, and convictions by civil authorities. (1) Paragraph 2-7, prescribes possible characterizations of service include an honorable, general (under honorable conditions), under other than honorable conditions, or uncharacterized if the Soldier is in entry-level status. However, the permissible range of characterization varies based on the reason for separation. (2) Paragraph 2-8, prescribes the characterization is based upon the quality of the Soldier's service, including the reason for separation and determined in accordance with standards of acceptable personal conduct and performance of duty as found in the UCMJ, Army regulations, and the time-honored customs and traditions of the Army. The reasons for separation, including the specific circumstances that form the basis for the discharge are considered on the issue of characterization. (3) Chapter 13, 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. 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 AMHRR is void of the specific facts and circumstances concerning the events which led to the discharge from the Army Reserve. The applicant's AMHRR does contain a properly constituted discharge order: Orders 07-134-00005, dated 14 May 2007. The orders indicate the applicant was discharged under the provisions of AR 135-178, with a characterization of service of under other than honorable conditions. The applicant contends, in effect, the applicant was wrongfully discharged for homosexual admission as retaliation for getting the first sergeant removed from duty and forced into retirement for sexual assault. There is no evidence in the applicant's AMHRR, and the applicant did not provide a document that shows the reason the applicant was discharged. The applicant provided a Veterans Affairs Disability rating decision for PTSD, dated 5 July 2022 wherein the applicant states in an email that the PTSD is due to the military sexual trauma. Current law and regulations now allow Soldiers who are homosexual to serve openly. Former Soldiers discharged under the old policy may request a change to the reason for their separation invoking the current standard. The original discharge must be based solely on Don't Ask Don't Tell (DADT) or a similar policy in place prior to enactment of DADT and no aggravating factors in the record, such as misconduct. 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: Post Traumatic Stress Disorder and Military Sexual Trauma. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found VA service connection for PTSD due to MST establishes it existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. After applying liberal consideration, the Board's Medical Advisor determined that the applicant's Post Traumatic Stress Disorder and Military Sexual Trauma could mitigate the applicant's discharge, however, the Board Medical Advisor was unable to provide a medical opine on whether the applicant's Post Traumatic Stress Disorder and Military Sexual Trauma actually mitigate the applicant's discharge because the applicant's official records do not contain the facts and circumstances surrounding the applicant's discharge and the applicant did not provide evidence of the basis of the applicant's separation. Without knowing the facts and circumstances relating to the applicant's discharge, the Board Medical Advisor is unable to determine if the applicant's conditions mitigate the applicant's discharge. (4) Does the condition or experience outweigh the discharge? N/A. b. Response to Contention(s): The applicant contends that the discharge was unjust and retaliatory. The Board considered this contention and determined that an upgrade is warranted due to a reversal of the Don't Ask, Don't Tell policy. c. The Board determined the discharge is inequitable based on the reversal of the Don't Ask, Don't Tell policy. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. As there were no Reasons/SPD Codes/RE-codes listed on the applicant's discharge paperwork, due to being in the Army Reserves, no upgrade actions are available for these items. d. Rationale for Decision: The Board voted to change the applicant's characterization of service to Honorable. The Board accepted the basis of separation as a homosexual admission. Due to a reversal in the Don't Ask, Don't Tell policy, the prior characterization is no longer appropriate. 10. BOARD ACTION DIRECTED: a. Issue a New Separation Order: Yes b. Change Characterization to: Honorable c. Change Authority to: AR 135-178, Paragraph 13 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 AR20220001811 1