IN THE CASE OF: BOARD DATE: 31 October 2019 DOCKET NUMBER: AR20180016183 APPLICANT REQUESTS: The applicant requests: * an upgrade of her under other than honorable conditions (UOTHC) discharge * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Mental Health Care, Inc. Chart Review Diagnosis Entry Report, run date 8 November 2018 * Driver License, issued 13 March 2013 * Prescription for Medication, dated November 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States 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. She has been diagnosed with post-traumatic stress disorder (PTSD), bipolar, and many other things. She was diagnosed in 2012 and it all stemmed from being molested in 1991 by her uncle. It went untreated and unrecognized by the recruiter. Her participation in the military training only made it worse. b. She has been treated for PTSD, bipolar, in manic depression since 2012. She believes this played a big part in how her mind perceived and registered how she should react in various situations. She felt like she was closed in and someone was always out to get her. It made her feel as though she needed to do whatever she needed to in order to survive. She did not file earlier due to her feelings of regret and embarrassment. 3. On 12 September 1996, at the age of 18 years old, the applicant enlisted in the Regular Army for a term of 3 years. 4. Her record is void of a DD Form 458 (Charge Sheet). Her record shows: a. On 29 October 1997, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. She consulted with legal counsel and was advised of the basis for the trial by court-martial, her available rights and the basis for voluntarily requesting discharge under the provision of AR 635-200, chapter 10. She elected not to submit statements on her own behalf. She stated she made this request based on the following charges being preferred against her: one specification of violation of Article 107 (false official statement), Uniform Code of Military Justice (UCMJ) and six specifications of violation of Article 121, UCMJ (larceny). b. The applicant's chain of command recommended approval of her request and on 12 November 1997, the appropriate separation authority approved the applicant's request directing that she be issued an Other Than Honorable Conditions Certificate and she be reduced to private (PVT)/E-1. c. On 17 November 1997, she was discharged under AR 635-200, Chapter 10, in lieu of trial by court-martial. Her service was characterized as UOTHC. She completed 1 year, 2 months, and 6 days of net active service this period. Her DD Form 214 shows she was awarded or authorized: * Army Service Ribbon * Rifle Sharpshooter Marksmanship Qualification Badge 5. The applicant provides: * DD Form 149, discussed above * Mental Health Care, Inc. Chart Review Diagnosis Entry Report, run date 8 November 2018, showing she was diagnosed with bipolar I disorder and anxiety * Driver License, issued 13 March 2013, showing her personal information * Prescription for Medication, dated November 2018, showing she was prescribed medication (illegible) by a medical doctor 6. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on mental health conditions, including PTSD. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. The applicant states, she has been diagnosed with PTSD, bipolar, and many other things. She was diagnosed in 2012 and it all stemmed from being molested in 1991 by her uncle. It went untreated and unrecognized by the recruiter. Her participation in the military training only made it worse. Her record shows she enlisted at the age of 18 years old, and charges were preferred against her for one specification of false official statement and six specifications of larceny. She completed 1 year, 2 months, and 6 days of her 36 months contractual obligation. 7. In regards to the applicant's request for a personal appearance, Army Regulation 15- 185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 8. The Army Review Boards Agency Psychiatrist was asked to review this case. Information reviewed included the applicant's ABCMR application, applicant provided medical documentation, her military personnel records, and the VA electronic medical record (Joint Legacy Viewer (JLV)). The military electronic medical record (Armed Forces Health Longitudinal Technology application (AHLTA)) was not reviewed as it was not in use during the applicant's time in service. No hardcopy military medical records were provided for review. The psychiatrist stated, in pertinent part: a. While the applicant has provided medical documentation of a 2017 and a 2018 diagnosis of Bipolar I Disorder and Anxiety State, unspecified, there is no indication in her military records that she suffered from said conditions while on active duty in 1996- 1997. Additionally, these psychiatric conditions, had they existed during applicant's time in service, would not mitigate her misconduct as larceny and making a false official statement are not part of the natural history of either disorder. b. The applicant has also stated in her ABCMR application that she suffers from PTSD. She has provided no medical documentation of this condition and her military medical records do not indicate that she suffered from PTSD while on active duty. Additionally, this psychiatric condition, had it existed during applicant's time in service, would not mitigate her misconduct as larceny and making a false official statement are not a part of the natural history of this disorder. c. In accordance with the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum, the applicant’s military records do not support the existence of PTSD or another boardable mental health condition at the time of discharge. The applicant’s military records indicate that the applicant did meet medical retention standards in accordance with AR 40-501 (Medical Services – Standards of Medical Fitness). No mitigating factors were identified in the applicant’s available military records. 9. The applicant was provided a copy of the medical advisory for her response/rebuttal; the applicant did not respond. 10. AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. A member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 11. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct and the reason for her separation. 2. The Board noted the applicant’s contention of PTSD and that she stated it stemmed from an event that occurred prior to military service. Her military medical records and separation physical did not find PTSD disabilities during her service. Even if the applicant’s PTSD existed during applicant's time in service, it would not mitigate her misconduct of larceny and making a false official statement would not be caused by PTSD. 3. While the applicant has provided medical documentation of a 2017 and a 2018 diagnosis of Bipolar I Disorder and Anxiety State, unspecified, there is no indication in her military records that she suffered from said conditions while on active duty in 1996- 1997. Additionally, these psychiatric conditions, had they existed during applicant's time in service, would not mitigate her misconduct as larceny and making a false official statement are not part of the natural history of either disorder. 4. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 5. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not required to serve the interest of equity and justice in this case. 6. After reviewing the application and all supporting documents, the Board found that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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. 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. d. A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. 3. On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. a. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. b. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. c. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180016183 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180016183 7 ABCMR Record of Proceedings (cont) AR20180016183 6