ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 April 2020 DOCKET NUMBER: AR20180013987 APPLICANT REQUESTS: Her under other than honorable discharge (UOTHC) be upgraded to an under honorable conditions (general) discharge or an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 3 October 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b). However, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. At the time of her discharge she was in, on emergency leave, when she became pregnant with twins. She was hospitalized often. Her duty station was Tripler Army Medical Center. She was in a car accident. The police told her she was absent without leave (AWOL). She did not know this because her orders were to call in weekly to a recruiter in a different city. Once she arrived at to clear up her AWOL, she was taken to Ireland Army Community Hospital. The doctor told her she was having a miscarriage and performed a procedure that gave the fetuses a chance. She gave birth 16 weeks early. After two months, the babies were flown from b. She needed a quick discharge so she could leave the next day to be with her babies. She was never offered a medical discharge. The only reason she took an "other than honorable" discharge was because she understood it to be "general" or nothing bad. She was only 20 years old. 1 c. She went to college and law school, which took 11 years. She learned discipline and how to work hard. She realizes staying an extra 30 to 60 days would have given her an honorable discharge but her tiny babies needed her. The Department of Veterans Affairs (VA) stated her service was "honorable" after a character determination. The VA has rated her 60 percent (%) disabled. 3. The applicant enlisted in the Regular Army on 15 September 1987. 4. The applicant was reported as AWOL on or about 3 June 1989. She was apprehended by civilian authorities in and returned to military control on 28 August 1989. 5. The applicant was hospitalized on 30 August 1989. A review of the relevant DA Form 3647 (Inpatient Treatment Record Cover Sheet) included in her service record indicates she was placed on convalescent leave from 5 October 1989 to 13 November 1989. 6. Court-martial charges were preferred against the applicant on 14 November 1989 for violations of the Uniformed Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) shows she was charged with being AWOL from on or about 3 June 1989 through on or about 28 August 1989. 7. The applicant consulted with legal counsel. a. She was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and the procedures and rights that were available to her. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In her request for discharge, she acknowledged her understanding that by requesting discharge, she was admitting guilt to the charge against her, or of 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, she could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and she could be deprived of her rights and benefits as a veteran under both Federal and State laws. c. She was advised she could submit any statements she desired in her behalf. She elected not to submit a statement. 8. The applicant's chain of command recommended approval of her request for discharge. The separation authority approved her request on 13 December 1989, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. The separation authority further directed that she be reduced to the lowest enlisted grade and that she be discharged UOTHC. 9. The applicant was discharged on 31 January 1989, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of court-martial. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms she was discharged in the lowest enlisted grade and her character of service was UOTHC. 10. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 11. The applicant petitioned the Army Discharge Review Board (ADRB) for a review of her discharge proceedings. The ADRB considered her request on 14 January 1997, determined she was properly discharged, and denied her request for relief. 12. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents, the applicant’s iPERMS records and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA), Health Artifacts Image Management Solutions (HAIMS) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: a. The applicant, with primary MOS 91N10 Cardiac Specialist, is requesting a discharge upgrade. She explains that while on emergency leave at home in Chicago (to see her ailing mother), she was pregnant with twins and complications related to such caused multiple hospital visits which prolonged her stay. She was eventually charged with being AWOL from 03 Jun-27 August 1989. There were no hospital records during the AWOL time period presented for review. The applicant was apprehended by authorities, and soon thereafter was admitted 30 August 1989 for emergent surgical delivery of premature twins followed by convalescent leave from 05 October to 13 November 1989. She admits to acquiescing to the most expeditious means of separation and added that she was not offered a medical discharge. She contends that the VA has characterized her service as honorable after character determination proceedings. She previously applied to ADRB but was denied 27 January 1997. b. The 25 May 2018 VA C&P psychologist endorsed a PTSD diagnosis due to sexual harassment from co-workers at the Cardiac Clinic and an incident of sexual assault. The psychologist asserted that her PTSD was manifested by avoidance behavior and anxiety, and also noted suspiciousness and relationship issues. With consideration of the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum, the applicant’s military medical records reasonably support the probable existence of PTSD at the time of discharge. The pregnancy related medical issues that delayed her return from the emergency leave in Chicago, as well as the applicant’s avoidance behavior due to PTSD led to the offense of being absent without leave and therefore contributed to her discharge from the military. The applicant’s AWOL misconduct IS mitigated by the PTSD condition. There were no medical records presented for review covering the applicant’s condition after delivery of the twins. Based on the available information for review, the applicant DID meet medical retention standards IAW AR 40-501. BOARD DISCUSSION: After reviewing the application, the supporting documents, the records, applicable regulations, published DoD guidance for discharge upgrade requests and the facts above, the Board found that relief is warranted. The Board considered the applicant's statement, her record of service, the frequency and nature of her misconduct, the charges preferred, her request for discharge and the reason for her separation. The Board considered the review and conclusions of the medical advising official, the applicant's VA documents and her statement regarding post-service conduct. The Board found that liberal consideration applied and based on a preponderance of evidence, determined that the character of service the applicant received upon separation required correction. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing on her DD Form 214 for the period of service ending 31 January 1989 her character of service as general under honorable conditions. 12/18/2020 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. REFERENCES: 1. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS//