IN THE CASE OF:  BOARD DATE:   4 June 2021 DOCKET NUMBER:  AR20210006495 


APPLICANT REQUESTS:  Her under honorable conditions (general) discharge be upgraded to an honorable discharge.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 293 (Application for the Review of Discharge from the Armed Forces ofthe United States), dated 20 October 2020

.DD Form 214 (Certificate of Release or Discharge from Active Duty), for theperiod ending 15 February 2012

.the applicant indicates she provided documentation from the Department ofVeterans Affairs (VA) showing a diagnosis of fifty percent disability due to post-traumatic stress disorder (PTSD); however, such documentation is not includedwith her application



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 MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states, in effect, she served and did a lot of good things during hertime in the Army.  As a result, she received medals and commendations.  She alsocompeted in Modern Army Combatives under the Third Infantry Division.  She servedproudly and regrets her actions that resulted in her separation.  She is disappointed shecannot tell her children she was honorably discharged.

3.The applicant enlisted in the Regular Army on 17 September 2008.

4.DA Forms 4856 (Developmental Counseling Form), rendered on 9 September and12 September 2011, show the applicant was counseled for failing to report to herappointed place of duty, and without proper authority, absenting herself from a fieldexercise and remaining so absent until on or about 12 September 2011.  As a result, theapplicant’s immediate commander advised her that she was recommending theapplicant for field-grade non-judicial punishment (NJP) under the provisions of Article 15
of the Uniform Code of Military Justice (UCMJ).  The commander also advised the applicant that continued conduct of this nature could result in actions to separate her from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 5, 9, 13, or 14.  The commander further advised the applicant that should she be involuntarily separated, she could receive an honorable discharge, a general discharge under honorable conditions, or an under other than honorable conditions discharge and described the potential impact of each type of discharge on future benefits and civilian employment opportunities. 

5.A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated12 September 2011, shows a non-transferable flag was initiated against the applicantfor adverse action, effective 12 September 2011.

6.A DA Form 268, dated 19 September 2011, shows a non-transferable flag wasinitiated against the applicant for field initiated elimination action, effective12 September 2011.

7.The applicant accepted field-grade NJP on 4 October 2011, under the provisions ofArticle 15 of the UCMJ, for without authority and with intention to avoid a field exercise,absenting herself from her unit from on or about 8 September until on or about12 September 2011.  Her punishment included reduction in rank/grade fromspecialist/E-4 to private first class/E-3 and forfeiture of $975.00 pay (suspended to beautomatically remitted if not vacated before 1 April 2012), and extra duty for 45 days.

8.The applicant was counseled by her team leader on 17 November 2011 for failing toreport for weapons draw and missing movement for a field training exercise on27 October 2011.

9.The applicant was counseled by her immediate commander on 17 November 2011and advised she was being recommended for vacation of suspension of NJP for failingto report for weapons draw and missing movement for a field training exercise on27 October 2011.  The commander also advised the applicant that continued conduct ofthis nature could result in actions to separate her from the Army under the provisions ofArmy Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 5, 9,13, or 14.  The commander further advised the applicant that should she be involuntarilyseparated, she could receive an honorable discharge, a general discharge underhonorable conditions, or an under other than honorable conditions discharge anddescribed the potential impact of each type of discharge on future benefits and civilianemployment opportunities.

10.The applicant’s immediate commander requested the aforementioned legal actionon 18 November 2011.

11.The applicant underwent a pre-separation medical examination on 18 November2011.

12.The applicant’s immediate commander counseled her on 29 November 2011.  Thecommander informed the applicant she was recommending the applicant beinvoluntarily separated from the Army under the provisions of Army Regulation 635-200,Chapter 14, for commission of serious offenses.  The commander also directed her toundergo a mental health evaluation in accordance with Department of DefenseDirectives 6490.1 and 6490.4 and the provisions of Army Regulation 635-200,Chapter 14 – Commission of Serious Offense.  The applicant was advised the catalystfor this action was her receipt of a field-grade Article 15 for AWOL and subsequentmissing of movement.

13.The applicant’s suspended NJP was vacated on 30 November 2011 and ordered tobe duly executed.

14.The applicant underwent a mental status evaluation on or about 14 December2011.  The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows theevaluation revealed no diagnoses, to include PTSD.  The Behavioral Health Provideropined the applicant could understand and participate in administrative proceedings;appreciate the difference between right and wrong and met medical/psychiatricretention standards.  The applicant was psychiatrically cleared for any action deemedappropriate by command.

15.The applicant's commander notified the applicant on 23 January 2012 that she hadinitiated actions to separate her from service under the provisions of Army Regulation635-200, paragraph 14-12b, for a pattern of misconduct.  The commander cited thespecific reasons as the applicant’s AWOL from 8 to 12 September 2011 and failure toreport on 27 October 2011.  The commander advised the applicant she wasrecommending the applicant receive a general, under honorable conditionscharacterization of service.

16.The applicant's immediate commander formally recommended the applicant'sseparation on 23 January 2012, under the provisions of Army Regulation 635-200,paragraph 14-12b.

17.The applicant consulted with counsel on 25 January 2012 and was advised of thebasis for the contemplated action to separate her and of the rights available to her.  Sherequested her right to be represented by counsel and elected not to provide statementsin her own behalf.  The applicant also acknowledged her understanding that she mayexpect to encounter substantial prejudice in civilian life if a general discharge underhonorable conditions was issued to her.  She further understood that with a dischargewhich is less than honorable, she may make application to the Army Discharge Review
Board or the ABCMR for upgrading; however, she realized that an act of consideration by either board does not imply her discharge would be upgraded. 

18.The applicant’s discharge under the provisions of Army Regulation 635-200,paragraph 14-12b, was approved on 30 January 2012 and the separation authoritydirected the applicant to be separated with a general, under honorable conditionsdischarge.

19.The applicant was discharged on 15 February 2012.  Her DD Form 214 shows shewas discharged under the provisions of Army Regulation 635-200, paragraph 14-12b,by reason of pattern of misconduct, and her service was characterized as underhonorable conditions (General).

20.The applicant’s record is void of any evidence and she did not provide anyevidence that shows she was diagnosed with a mental health condition at any timeduring or after her military service.

21.The applicant petitioned the Army Discharge Review Board (ADRB) for an upgradeof his discharge.  An ADRB letter, dated 1 July 2016, informed the applicant the ADRBconsidered her request, determined she was properly and equitably discharged, anddenied her request for relief.

22.The Board should consider the applicant's statement in accordance with thepublished equity, injustice, or clemency determination guidance.  Boards are to giveliberal consideration to Veterans petitioning for discharge relief when the application forrelief is based in whole or in part on mental health conditions, including PTSD.  Theveteran’s testimony alone, oral or written, may establish the existence of a condition orexperience, that the condition or experience existed during or was aggravated bymilitary service, and that the condition or experience excuses or mitigates thedischarge.

23.MEDICAL REVIEW:

a.The Army Review Board Agency (ARBA) Medical Advisor reviewed the supportingdocuments and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: While the applicant is service connected for PTSD, the Compensation and Pension (C&P) exam, or any reference to the basis, is void.   
b.Moreover, VA records indicate the applicant denied a MST. Rather, the applicanthas been diagnosed with Anxiety Disorder NOS in- and post-service.  Although liberal consideration was applied, without the trauma underlying the PTSD diagnosis mitigation cannot be determined. Furthermore, the applicant’s diagnosis of Anxiety Disorder NOS 
does not mitigate the basis for separation.  Accordingly, an upgrade is not supported from a behavioral health standpoint at this time.  However, the Board could consider the applicant’s assertion of a toxic work environment. 
c.The applicant was discharged on 15 February 2012 under Chapter 14-12b,Patterns of Misconduct, with a General characterization.  The basis for separation included an AWOL from 08 to 12 September 2011 and failure to report on 27 October 2011. The applicant requests an upgrade to an Honorable characterization stating she “did a lot of good things during her time in the Army … she served proudly and regrets her actions that resulted in her separation … disappointed she cannot tell her children she was honorably discharged.”   
d.The applicant had a prior ADRB application in 2015 requesting an upgradeasserting she was under duress in her unit, the unit was not of the same caliber as the unit she deployed with, she did not want to deploy with the new unit, and her transfer request was denied. A medical advisor was not requested at that time.  The ADRB determined the applicant’s discharge was proper and equitable denying relief. 
e.In November 2009, while deployed, the applicant went to behavioral health relatedto anxiety; she worked at the Entry Control Point (ECP) and feared a vehicle with a bomb would try and come through the gate.  She was treated with short-term therapy and medication, carrying an Anxiety Disorder NOS diagnosis, and improved. In January 2011, the applicant had a PCS screen noting anxiety was limited to deployment and resolved once home. In December, the applicant had a Chapter Mental Status Exam (MSE) noting she went AWOL for four days, missed movement, and then went AWOL again as she “could not bear the thought of dealing with her company and with Ft. Benning.” While the applicant noted anxiety while deployed, she denied active symptoms or any behavioral health symptoms.  She was cleared with no diagnosis. 
f.The applicant is 50% service connected for PTSD; however, the exam and basis isvoid. In November 2020, the applicant was referred for medication management for anxiety. The applicant denied combat, noting she “did things to get in trouble because I wanted out” related to a “toxic environment as one of few females.” When asked if she’d consider the experience a MST, the applicant denied stating “just a toxic environment.” The applicant was diagnosed with Anxiety Disorder Unspecified. In a December 2020 psychiatry intake, she again denied civilian or military trauma. The provider noted she did not meet criteria for PTSD although service connected for such. 
g.The electronic packet contained a separation physical which was void ofbehavioral health symptoms, diagnosis/es, or treatment. 


BOARD DISCUSSION: 



After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted.  The Board considered the applicant’s ownstatement that she “did things to get in trouble because I wanted out” of the service, her record of service, the frequency and nature of her misconduct and the reason for her separation.  The Board considered the review and conclusions of the medical advisor, the lack of any evidence of any condition or experience to mitigate her behaviors and the absence of post-service achievements or letters of reference to support a clemency determination, the Board determined there was insufficient evidence of an error orinjustice which would warrant a change to the applicant’s characterization of service.  BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XX :XX :XXX DENY APPLICATION 










REFERENCES: 

1.Title 10, USC, Section 1552(b), provides that applications for correction of militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.  The version in effect at the time provided that:

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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. 

c.Chapter 14, in effect at the time, established policy and prescribed procedures forseparating members for misconduct.  Specific categories included minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge UOTHC was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority could direct a general discharge if such was merited by the Soldier’s overall record. 

3.The Secretary of Defense directed the Service Discharge Review Boards (DRBs)and Service Boards for Correction of Military/Naval Records (BCM/NRs), on3 September 2014, to carefully consider the revised PTSD criteria, detailed medicalconsiderations, and mitigating factors when taking action on applications from formerservice members administratively discharged under UOTHC and who have beendiagnosed with PTSD by a competent mental health professional representing a civilianhealthcare provider in order to determine if it would be appropriate to upgrade thecharacterization of the applicant's service.

4.  The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017.  The memorandum directed them to give liberal consideration 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, 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. 
 
 a.  Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. 
 
 b.  An honorable discharge characterization does not require flawless military service.  Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. 
 
 c.  Liberal consideration does not mandate an upgrade.  Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 
 
5.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs 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//