1. Applicant's Name: a. Application Date: 25 October 2022 b. Date Received: 5 December 2022 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 general (under honorable conditions). The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. The Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28, which stipulates a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant seeks relief contending, in effect, the discharge was inequitable and improper because it was based on a picture that was taken in 2019 of the applicant and a current close friend. The applicant was discharged from the Army on 15 July 2022 for commission of a serious offense. The applicant's chain of command failed to do a proper investigation of the situation and wrongly accused and assumed the applicant was fraternizing with Specialist (SPC) W__ in violation of Army Regulation 600-20 (Army Command Policy). The picture that was sent to the applicant's chain of command was sent from the applicant's estranged wife the day after they had an altercation where the estranged wife physically abused the applicant on 10 April 2022 in which the police was called, and the applicant pressed charges. The applicant was hospitalized and put on quarters for 2 days. Returning back from quarters the applicant was called into the commander's office where the applicant was informed about the picture and an email from the applicant's wife at that time. The applicant's first line supervisor at the time and chain of command was aware of the situation with the applicant's ex-wife and why the applicant was hospitalized and put on quarters. The applicant also informed them that the pictures was from 3 years ago and that the applicant's ex-wife was trying to destroy the applicant's career because they were going through a divorce. There was no investigation, and no one wanted to hear what the applicant had to say regarding this situation. They immediately informed the applicant of being flagged for involuntary separation effective 12 April 2022. The applicant hired an attorney that did not understand the grounds for the separation. The attorney and applicant provided evidence and proof of the allegations and assumptions taken against the applicant on 8 June 2022 to Major H__. A few weeks went by, and the commander asked for more evidence regarding the case. On 27 June 2022 the attorney and applicant provided additional evidence. The facts and evidence were overlooked in the case and the applicant never had a chance in being heard by the chain of command. The applicant was punished and discharged from the Army with dreams and goals taken due to a picture from 2019. b. Board Type and Decision: In a telephonic personal appearance board conducted on 14 August 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's Military Sexual Trauma outweighing the applicant's inappropriate relationship offense. 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. The Board determined the reentry code is 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: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 15 July 2022 c. Separation Facts: The applicant's Army Military Human Resource Record (AMHRR) is void of the case separation file. However, the applicant provided documents which are described below in 3c(1) through (3). (1) Date of Notification of Intent to Separate: 20 May 2022 (2) Basis for Separation: The applicant was informed of the following reasons: Between on or about 19 March 2021 and 13 April 2022, the applicant engaged in an intimate relationship with SPC M__ W__, a junior enlisted Soldier while serving as a noncommissioned officer, in violation of Army Regulation 600-20, paragraph 4-14b. Specifically, the applicant and SPC W__ kissed. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 8 June 2022 / 27 June 2022 / Civilian Counsel / Military Justice Atty. (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 6 March 2019 / 4 years b. Age at Enlistment / Education / GT Score: 28 / High School Graduate / 100 c. Highest Grade Achieved / MOS / Total Service: E-5 / 92G10, Culinary Specialist / 6 years, 1 month, 15 days d. Prior Service / Characterizations: 31 May 2016 - 5 March 2019 / HD e. Overseas Service / Combat Service: SWA / Kuwait (18 February 2017 - 14 November 2017; 21 June 2021 - 5 October 2021) f. Awards and Decorations: ARCOM, AAM-6, AGCM, NDSM, GWOTSM, GWOTEM, NCOPDR, ASR, OSR g. Performance Ratings: 1 July 2020 - 1 October 2021 / Qualified h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 26 April 2022, for being disrespectful in language towards Staff Sergeant C__ S__, a noncommissioned officer, by saying, "your making assumptions, and people who make assumptions look like assholes," or words to that effect on or about 10 February 2022. The punishment consisted of a reduction to E-4; forfeiture of $1,393.00 pay (suspended); and extra duty for 45 days. The applicant appealed the Article 15. On 1 May 2022, the appeal was denied. Five Developmental Counseling Forms, for various acts of misconduct and a bar to reenlistment. The applicant's Enlisted Record Brief, dated 23 March 2022, reflects the applicant was flagged for adverse action (AA), effective 23 March 2022 and elimination - field initiated (BA), effective 12 April 2022; was ineligible for reenlistment due to pending separation (9V). The Assignment Eligibility Availability (AEA) code reflects AEA code "L" which has no assignment restrictions. The applicant was reduced from E-5 to E-4 effective 26 April 2022. FLAGS / AEA codes: AA, BA / L RE/Prohibition code: 9V i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; enclosures 1 through 12 (includes separation notification memorandum), and 1 through 5. 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 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) 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. (5) 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. (6) Paragraph 14-12c prescribes a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. (7) 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). 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 will be considered for 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 record confirms the applicant's discharge was appropriate because the quality of the applicant's service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army and was prejudicial to good order and discipline. By the misconduct (serious offense), the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. The applicant contends, in effect, to have informed the chain of command that the pictures sent to the 1SG was from 3 years prior and that the applicant's now ex-wife was trying to destroy the applicant's career because they were going through a divorce. The applicant provided a picture that the applicant's now ex-wife sent to the 1SG. The picture is from snapchat, it is of two people touching lips, dated 20 April 2019. The applicant also provided a letter from the applicant's ex-wife, M__ J__ that states the ex-wife sent pictures and a video to the 1SG due to insecurities with their relationship. The applicant provided a letter, dated 7 June 2022, from SPC W__ (the other person in the picture from snap chat) that states, the photograph that alleged to depict kissing the applicant was taken prior to SPC W__ joined the Army on 30 April 2019. When entering the Army SPC W__ and the applicant no longer had any physical or romantic contact. The applicant contends, in effect, there was no investigation, was wrongly accused of fraternizing with a junior Soldier, and no one wanted to hear what the applicant had to say regarding this situation. The applicant provided a memorandum from the attorney obtained for separation processing, response to notification of additional evidence, dated 27 June 2022, that reflects the applicant was on leave in Maryland on 20 April 2019 for a funeral when the picture was taken of the applicant and SPC W__ which was prior to SPC W__ being in the Army. Therefore, the applicant did not engage in fraternization with SPC W__. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 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): Applicant and witness (Ms. X.) provided oral argument and statements in support of contentions that counsel provided in written submissions and in support of previously submitted documentary evidence. b. The applicant presented the following additional contention(s): N/A c. Counsel / Witness(es) / Observer(s): N/A 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: the applicant was diagnosed in-service with Post Traumatic Stress Disorder, Anxiety Disorder NOS, Adjustment Disorder, and Alcohol Dependence with Military Sexual Trauma. Post-service, the applicant is service connected for PTSD due to MST. (2) Did the condition exist or experience occur during military service? Yes. The applicant was diagnosed in-service with PTSD, Anxiety Disorder NOS, Adjustment Disorder, and Alcohol Dependence with MST. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the diagnoses and MST do not mitigate the applicant's offense given the lack of a nexus between trauma, anxiety, and adjustment disorders and pursuing an inappropriate relationship. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant's Military Sexual Trauma and resulting Post Traumatic Stress Disorder outweighed the applicant's inappropriate relationship offense due to the severe nature of the trauma and the relatively minor infraction. b. Response to Contention(s): (1) The applicant contends to have informed the chain of command that the pictures sent to the 1SG were from 3 years prior and that the applicant's now ex-wife was trying to destroy the applicant's career because they were going through a divorce. The Board considered this contention during proceedings but ultimately did not address it due to the determination that the applicant's Military Sexual Trauma and resulting Post Traumatic Stress Disorder outweighed the applicant's inappropriate relationship offense due to the severe nature of the trauma and the relatively minor infraction. Therefore, a discharge upgrade is warranted. (2) The applicant contends there was no investigation and the applicant was wrongly accused of fraternizing with a junior Soldier. The Board considered this contention during proceedings but ultimately did not address it due to the determination that the applicant's Military Sexual Trauma and resulting Post Traumatic Stress Disorder outweighed the applicant's inappropriate relationship offense due to the severe nature of the trauma and the relatively minor infraction. Therefore, a discharge upgrade is warranted. c. The Board determined the discharge is inequitable based on the applicant's Military Sexual Trauma and resulting PTSD outweighing the applicant's inappropriate relationship offense. 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. The Board determined the reentry code is proper and equitable and voted not to change it d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's Military Sexual Trauma and resulting PTSD outweighed the applicant's inappropriate relationship misconduct. Thus, the prior characterization is no longer appropriate. (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. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: 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 AR20230002323 1