1. Applicant's Name: a. Application Date: 22 June 2022 b. Date Received: 28 June 2022 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is honorable. The applicant requests a narrative reason change. The applicant seeks relief contending, in effect, that with the current reentry code of "3" she is unable to reenlist; the applicant would like a change to "1" for the purpose of being able to reenlist. The applicant believes the narrative reason for separation of a pattern of misconduct is not a true statement since the reason for discharge was the result of being sexually abused. b. Board Type and Decision: In a telephonic review conducted on 1 May 2023, and by a 5-0 vote, the Board determined the narrative reason for the applicant's separation is inequitable based on the applicant's MSTs and IPV experiences outweighing applicant's MSTs and IPV outweighed the disobeying a lawful order, disrespect towards Officers and NCOs basis for separation. Therefore, the Board directed the issue of a new DD Form 214 changing 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. The Board determined the reentry eligibility (RE) code was proper and equitable and voted not to change it. 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 / Honorable b. Date of Discharge: 7 June 2022 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 May 2022 (2) Basis for Separation: The applicant was informed of the following reasons: for having receive a lawful command from a CPT, a superior commissioned officer, to wit: to attend the command directed behavioral health evaluation on 24 February 2022, willfully disobeyed the same on 23 February 2022: Behaving with disrespect towards the chain of command, by being aggressive towards them and telling them you would refuse all command-directed behavioral health evaluations ordered by a commander on 24 February 2022: Between on or about 4 March 2022 and on or about 1 April 2022, on divers' occasion behaved with disrespect towards a CPT, the superior officer in command by communicating to a SFC and SSG, language that was disrespectful in nature: Between on or about 4 March 2022 and on or about 1 April 2022, on divers' occasions behaved with disrespect towards a COL, the superior officer in command by communicating to a SFC and a SSG, language that was disrespectful in nature: On 25 March 2022, was disrespectful in deportment towards a SFC, by throwing a counseling form in the trash: and On 1 April 2022, behaved with disrespect towards a COL, a superior commissioned officer in command by showing a complete disregard to authority and contemptuously turning from and leaving while the COL, was talking. (3) Recommended Characterization: Honorable (4) Legal Consultation Date: 24 May 2022 indicates the applicant had filed an unrestricted sexual assault report within 24 months of initiation of the separation action and that it was believed that this separation was (is) a direct or indirect result of the sexual assault itself or the filing of the unrestricted report. It was also noted that the applicant believed she suffered from post-traumatic stress disorder or traumatic brain injury because of military sexual trauma during the previous 24 months. (5) Administrative Separation Board: None (6) Separation Decision Date / Characterization: 2 June 2022 / Honorable 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 May 2020 / 4 years b. Age at Enlistment / Education / GT Score: 24 / BA / 110 c. Highest Grade Achieved / MOS / Total Service: E-4 / 12Y10, Geospatial Engineer / 2 years, 27 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Germany / None f. Awards and Decorations: AAM, NDSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Memorandum for Record dated 23 November 2021, indicates the applicant exercised her right to an expedited transfer after making an Unrestricted Sexual Assault report. The applicant requested and received an approved expedited transferred to Joint Base Lewis McCord in Washington State. Memorandum for Record, dated 17 May 2022, reference Medical Examination and Mental Status Evaluation. The memorandum refers to the requirement for a medical examination and mental status evaluation for an administrative separation under Army Regulation (AR) 635-200. Chapter 14-12b. Memorandum for Commander, date 17 May 2022, reference "Request to Waive Rehabilitative Transfer Requirement for the applicant. It was noted that the applicant had been transferred to HHC, 16th CAB on 23 February 2022 from 1-2 SBCT via an inter-post transfer. Considering the circumstances and the misconduct involved at the time, it was believed that another transfer to a different battalion or brigade would serve no useful purpose or produce a quality, Soldier. It was noted that the applicant had repeatedly disobeyed orders form superior commissioned officer and displayed insubordinate conduct toward the chain of command. The applicant had actively resisted efforts to rehabilitate into HHC, 16th CAB to include refusal to attend command directed behavioral health assessments. The applicant displayed potentially suicidal behavior and made suicidal ideations. Report of Mental Status Evaluation, dated 29 March 2022, indicates the applicant was diagnosed with Other Trauma and Stress related Disorder, Occupational Problems. It was noted within the document by the Behavioral Health Provider that the applicant (SM) had a great deal trauma; however, very guarded about talking about her symptoms. I was possible that she might have a boardable diagnosis but was not able to make that diagnosis at the time. The applicant was very low risk for suicide and no elevated risk of hard to others. The applicant was going to see the unit MFLAC for follow-up care. The applicant was offered at Rainier EBH but did not want to do any treatment through BH services. Memorandum thru Officer of the Staff Judge Advocate, dated 1 June 2022, requesting that the applicant not be administratively separated but rather be given a rehabilitative transfer. It was believed that the applicant should not be separated because she suffered from the trauma of having been sexually assaulted by a fellow Soldier. When the applicant arrived to JBLM, she was first with 1-2 SBCT, she received an intra-post transfer for a new start with the 16th Combat Aviation Brigade (CAB) in February 2022. Letter / email addressed to a Major General, dated 21 May 2022, from the applicant's father, reference not discharging the applicant. CID Report, dated 27 July 2022, indicates the applicant was the victim of sexual assault, stalking, communicating a threat, and protective order issues. CID Report, dated 19 August 2022, indicates the applicant was the victim of sexual assault on 15 March 2022. CID Report, dated 29 August 2022, indicates the applicant was the victim of domestic violence and sexual assault on 25 June 2021. Department of the Army Inspector General Action Request System Electronic Case Form dated 20 December 2022, indicates the DAIG received requested assistance from the applicant for being sexually assaulted; CID and legal opined probable cause for rape and domestic abuse occurred. The applicant stated she did nothing criminal and wanted help. The applicant stated after having gone to the local IG nine times over a period of five months a retaliation investigation was never opened; as to the allegation that the COL, separated her from the United States Army in reprisal after filing an unrestricted sexual assault report against another COL, to a SHARP representative. Counseling statements for various acts of misconduct and duty performance. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): NIF (1) Applicant provided: (2) AMHRR Listed: 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 in lieu of DD Form 293; extract of SHARP reprisal definition; email dated 8 June 2022 to General B; rebuttal statement indicating having been a victim of several sexual assaults by members of the US Army; statement of being a victim statement assault; letter to the Secretary of the Amy; and DD Form 214 for the period of service under review. 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), 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. (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 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. (6) 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. (7) Paragraph 14-2b 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. (8) Chapter 15 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. 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, patterns 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. Eligibility: Ineligible unless a waiver is granted. RE-4 Applies to: Person separated from last period of service with a nonwaivable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 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 a narrative reason change. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant seeks relief contending that with the current reentry code of "3" the applicant is unable to reenlist; the applicant would like a change to "1" for the purpose of being able to reenlist. The applicant believes the narrative reason for separation of a pattern of misconduct is not a true statement since the reason for discharge was the result of being sexually abused. The applicant's contentions were noted; evidence in the AMHRR indicates the applicant was the victim of domestic violence and sexual assault; the applicant exercised her right to an expedited transfer after making an Unrestricted Sexual Assault Report. The applicant requested and received an approved expedited transferred to Joint Base Lewis McCord in Washington State. Evidence in the AMHRR indicates on 19 May 2022, separation action was initiated against the applicant for having received a lawful command from a CPT, a superior commissioned officer, to wit: to attend the command directed behavioral health evaluation on 24 February 2022, willfully disobeyed the same on 23 February 2022; being disrespectful towards the chain of command, by being aggressive towards them and telling them you would refuse all command-directed behavioral health evaluations ordered by a commander on 24 February 2022; between on or about 4 March 2022 and on or about 1 April 2022, on divers' occasion behaved with disrespect towards a CPT, the superior officer in command by communicating to a SFC and a SSG language that was disrespectful in nature; between on or about 4 March 2022 and on or about 1 April 2022, on divers' occasions behaved with disrespect towards a COL, the superior officer in command by communicating to a SFC and a SSG, language that was disrespectful in nature; was disrespectful in deportment towards a SFC, by throwing a counseling form in the trash: and behaved with disrespect towards a COL, a superior commissioned officer in command by showing a complete disregard to authority and contemptuously turning from and leaving while the COL was talking. The applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635- 200 with an honorable. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern of Misconduct," and the separation code is "JKA." Army Regulation 635-8, Separation Processing and Documents, governs the 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 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 It should be noted; Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. The applicant's DD Form 214 under review indicates the applicant was assigned an RE code of 3 at the time of discharge. 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. 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): None b. The applicant presented the following additional contention(s): Applicant and Mr. G.C. (witness) provided oral argument and statements in support of the contentions provided in written submissions and in support of previously submitted documentary evidence. c. Counsel / Witness(es) / Observer(s): Mr. (witness) 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, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: Borderline Personality Disorder, Adjustment Disorder, and Other Specified Trauma and Stressor Related Disorder. The applicant reported multiple MSTs with instances of IPV. (2) Did the condition exist or experience occur during military service? Yes. The applicant was diagnosed in-service with Borderline Personality Disorder, Adjustment Disorder, and Other Specified Trauma and Stressor Related Disorder. The applicant reported multiple MSTs with instances of IPV. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that given the association between trauma and difficulty with authority, and in light of the reported traumas of MSTs and IPV, the basis for separation is mitigated and Secretarial Authority recommended. However, a re-entry code change is not recommended. Individuals with a known behavioral health history require an evaluation to ensure they meet procurement standards, a re-entry code of 3 reflects this requirement. (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 MSTs and IPV outweighed the disobeying a lawful order, disrespect towards Officers and NCOs basis for separation for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant seeks relief contending that with the current reentry code of "3" applicant is unable to reenlist and would like a change to "1" for the purpose of being able to reenlist. The applicant believes the narrative reason for separation of a pattern of misconduct is not a true statement since the reason for discharge was the result of being sexually abused. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings along with the totality of the applicant's service record. Ultimately, the Board determined due to the traumas of MSTs and IPV the applicant's re-entry code is appropriate. However, the Board voted to upgrade the narrative reason to Secretarial Authority. c. The Board determined the narrative reason for the applicant's separation is inequitable based on the applicant's MSTs and IPV experiences outweighing applicant's MSTs and IPV outweighed the disobeying a lawful order, disrespect towards Officers and NCOs basis for separation. Therefore, the Board directed the issue of a new DD Form 214 changing 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. The Board determined the reentry eligibility (RE) code was proper and equitable and voted not to change it. However, the applicant may request a personal appearance hearing to address further 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 characterization of service due to it already being Honorable. (2) The Board voted to change the reason for discharge to Secretarial Authority under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JFF. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. Due to applicant's MST and IPV experiences, the RE code is appropriate. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: No Change 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 AR20220005930 1