SAMR-RB 6 September 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20160000576 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 8 August 2017, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant partial relief. Therefore, under the authority of Title 1O, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing her characterization of service as general, under honorable conditions. I direct no further correction be made to the record of the individual concerned. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 8 January 2018. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20160000576 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20160000576 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ______________x___________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20160000576 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of her military records by upgrading her under other than honorable conditions discharge. 2. The applicant states she never got into any trouble. She was depressed about her gender. She was afraid and concerned about being ridiculed as a transgender person. While on active duty she attempted suicide. 3. The applicant provides a letter from the Callen Lorde Community Health Center, dated 1 December 2015, with a 3-page laboratory report. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. On 29 January 1987, the applicant enlisted in the Regular Army. She completed her initial training, to include the 3-week Basic Airborne Course, and was awarded military occupational specialty 13B1P (Cannon Crewmember with parachutist qualification). 3. On 5 June 1987, the applicant departed Fort Benning, Georgia, for assignment to Fort Bragg, North Carolina. a. On 22 June 1987, she was assigned as a cannon crewmember with Battery B, 3rd Battalion, 8th Field Artillery; b. On 25 September 1987, she was assigned as a cannon crewmember with Battery B, 1st Battalion, 39th Field Artillery; and c. On 4 February 1988, she went absent without leave (AWOL). 4. On 6 December 1988, the applicant was returned to military control at Fort Dix, New Jersey. She accrued 306 days of lost time. 5. On 9 December 1988, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for violation of Article 86, AWOL, during the period from 4 February to 6 December 1988. 6. On 9 December 1988, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to her. 7. After consulting with counsel and being advised of her rights and options, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. She acknowledged she had been advised of and understood her rights under the UCMJ, that she could receive an under other than honorable conditions discharge which would deprive her of many or all of her benefits as a veteran, and that she could expect to experience substantial prejudice in civilian life if she received an under other than honorable conditions discharge. 8. In her request for discharge, the applicant indicated that she understood that by requesting discharge, she was admitting guilt to the charge against her, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. She further acknowledged she understood that if her discharge request was approved, she could be deprived of many or all Army benefits, that she could be ineligible for many or all benefits administered by the Veterans Administration, and that she could be deprived of her rights and benefits as a veteran under both Federal and State law. 9. The applicant elected not to make a statement in her own behalf. 10. On 20 January 1989, the separation authority approved the applicant’s request for discharge and directed that she be issued a DD Form 794A (Under Other than Honorable Conditions Discharge Certificate). 11. On 9 February 1989, the applicant was discharged accordingly. She received a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing she completed 1 year, 2 months and 9 days of creditable active duty service. The separation authority and narrative reason for separation was under the provisions of chapter 10, Army Regulation 635-200 for the good of the service – in lieu of trial by court-martial. Her character of service was under other than honorable conditions. Her dates of lost time were from 4 February to 5 December 1988. 12. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations. 13. The letter from the Callen Lorde Community Health Center, dated 1 December 2015, states the applicant has been a patient since 25 October 2004. She experiences persistent gender dysphoria. Her next step in the transition process is gender-confirming surgery. 14. In the processing of this case, a staff medical advisory opinion was obtained from the Army Review Boards Agency staff psychologist. a. The applicant met medical retention standards in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness), and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Separation, or Retirement) that were applicable to the applicant’s era of service. b. It is unknown if the applicant’s mental health condition (gender dysphoria) was considered at the time of her discharge from the Army. Gender dysphoria is thought to have an early onset form and a late onset form. It would appear since the applicant stated she has had gender dysphoria for more than 25 years, that she had early onset. However, there is insufficient evidence of depression or other concerns about her gender identify or mental health that mitigates her extensive AWOL period. The psychologist acknowledges she would have faced discrimination and discharge if she had been diagnosed with gender dysphoria in 1988 or 1989. c. A review of available documentation did reveal evidence of mental-health considerations that could bear on the character of the discharge in this case. A mitigating nexus between the applicant’s misconduct and her mental-health was not established; however, the applicant’s current status is supportive of the claim that her discharge was unduly harsh and was likely accomplished, based on the available evidence, in ignorance of relevant psychiatric considerations. 15. On 10 May 2017, a copy of the advisory opinion was sent to the applicant for her information and opportunity to respond. No response was received. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that, a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate. b. Paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member'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. c. Paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 2. Under the Manual for Courts-Martial, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year. DISCUSSION: 1. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ (AWOL for 305 days) with a punitive discharge. After consulting with defense counsel, she voluntarily requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met. The rights of the applicant appear to have been fully protected throughout the separation process. The characterization of service she received was commensurate with the reason for her discharge. 2. The available evidence indicates the applicant began treatment for gender dysphoria approximately 15 years after being discharged. Her medical treatment has been ongoing since at least 2004. Her comments about being fearful and concerned about being ridiculed are noted. 3. The applicant's military record shows she satisfactorily completed basic training, advanced individual training, and basic parachutist training. After her assignment to her first duty station, she went AWOL. 4. The medical advisory opinion states that there is no established nexus between the applicant’s mental health condition and her misconduct. However, her current status appears to be supportive of her claim that her characterization was unduly harsh. The psychologist opines that the Board could consider a compassionate determination with leniency when rendering its decision. 5. The applicant did not complete her commitment. She was AWOL for 306 days, and based on this offense court-martial charges were preferred against her. Conviction by a court-martial could have resulted in a bad conduct or dishonorable discharge. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member'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. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000576 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000576 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2