IN THE CASE OF: BOARD DATE: 23 June 2022 DOCKET NUMBER: AR20210014154 APPLICANT’S REQUEST: her under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. Incorporated herein by reference are military records, which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20180014688 on 2 May 2019. 2. The applicant states while on active duty in the Army in 2000-2003 she was experiencing a lot of family issues. She was going through a divorce and custody of her children. She was very stressed out, depressed, angry, and suicidal at the time. Her unit was on deployment and she requested several times to go on leave so that she may take care of the issues at hand. She was denied leave by the acting First Sergeant at the time who was rude and hateful. She was told that no one was allowed leave of absence while units were deployed. She stressed how important it was for her to go home or her children would be taken away from her. She was again denied leave. She took it upon herself to leave and handle business with and for her children and the court system. She never wanted to leave the Army because she saw a great life within the military. She left Fort Benning without permission and she regrets that decision every day of her life since. However, if she would have had an understanding commanding officer, she does not feel that she would've been in that situation. She begged and pleaded to stay in the Army, but her words were unmatched to this woman whom at the time was her acting First Sergeant. She continued to tell her if she did not take the deal of getting out on an other than honorable discharge, then she would go to jail for being absent without leave (AWOL). She owned up to her decision to go AWOL, but it was worth her fighting to keep her children which are all adults now with thriving lives. She would like for the board to give her another consideration and not allow her past decision to hinder her from her future. She has sent over one request but was told it did not get to the correct department. Please give her another chance at this status and change her other than honorable to what is deemed necessary for her to take care of her medical issues that she has had since having surgery in the military, which has caused significant damage to her intestines. 3. The applicant enlisted in the Army National Guard (ARNG) on 2 November 2000 and served until she was honorably discharged on 10 July 2001. 4. She enlisted in the Regular Army for 3 years. The record contains two DD Forms 1966 (Record of Military Processing), the first showing an enlistment date of 2 November 2000 with an active duty service date of 23 January 2001. The second shows an enlistment date of 25 June 2001 with an active duty service date of 20 May 2001. The DD Form 4 lists her date of enlistment as 11 July 2001. 5. The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 20 February 2002 for disobeying a lawful order, failure to go to her place of duty on or about 19 December 2001, being absent without leave from on or about 26 December 2001 through on or about 4 January 2001, and failure to pay a just debt. 6. The applicant was AWOL in desertion from 19 March 2002 until 23 June 2003. The record contains several administrative documents related to the applicant's absence and return. 7. Court-martial charges were preferred against the applicant on 6 June 2002 for violation of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows she was charged with being AWOL from on or about 19 March 2002. 8. A second DD Form 458 was prepared on 9 May 2003 showing she was charged with being AWOL from on or about 19 March 2002 until 24 April 2003. 9. Her chain of command recommended she be referred to a special court-martial empowered to adjudge a bad conduct discharge. 10. The applicant consulted with legal counsel on 28 May 2003 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 the procedures and rights that were available to her. a. 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 (VA), and she could be deprived of her rights and benefits as a Veteran under both Federal and State laws. b. She stated that under no circumstances did she desire further rehabilitation, she had no desire to perform further military service, if her request was accepted she would automatically be reduced to the pay grade of private E-1 during her out-processing and that her final payment will reflect that fact, and she would be unable to sell any unused leave back to the government. c. The applicant provided a statement on her own behalf wherein she stated: (1) She was going through a separation from her husband which brought on a great deal of stress, anger, hurt, and disappointment. He and his mother were accusing her of abusing her children and trying to get full custody of them. Her husband's mother called the police on her in their hometown and made a report of child abuse more than two times. She was being investigated on child abuse charges, even though there was no evidence. It was a headache for the both of them to put her kids and herself through the situation in which they did. She requested leave several times from her chain of command to resolve her personal issues allowing her time to go home and take care of the business concerning the situation. CPT who was the Commander of HHC, 36th ENG at that time, always denied her leave. (2) She talked with SFC her NCO, at the time all of this was going on in her life. She thought that she would keep it confidential, but as days went by it seemed as though everyone in the company knew what was going on in her life. She was told that she needed to make an IG complaint against her, but since she was already going through so much, she just didn't want to do anything like that. As a result, she didn't feel like she could trust her NCO support channel. (3) She was pregnant when she went AWOL and her husband was saying the baby that she was carrying wasn't his. This added a considerable amount of additional stress. She was to the point that she wanted to hurt her unborn child and myself. She had suicidal thoughts and sometimes she would just stay in her quarters and not leave to go to formation or anything. She was depressed and unhappy, she wanted to end her life. She tried to talk to an NCO in confidence again, thinking they would try to help her. Yet again everyone knew she was having suicidal thoughts, but no one cared. She just wanted to be away from Fort Benning and didn't want to live anymore. (4) At the time she left Fort Benning, she left everything. She called CPT when she went AWOL and he would say, " You need to come back, but don't bring your kids with you, because if you do, child protective services will be here to take your kids, because you are going to jail." She did call him numerous times and each time she did he would always tell her that when she came back she was going to jail. After hearing him say this, she got scared and she just couldn't let her children see her go to jail, so she sacrificed to stay gone so she could provide and take care of her kids. Her last contact with CPT was around August 2002. (5) While being AWOL, she had been to court to fight for her children so that she could keep custody of them. she was awarded custody of her children through the court. (6) She regrets going AWOL and she is truly sorry that she did. But as a mother she did not regret fighting for her children. If only she would have had someone to talk to that could have helped me, things would have not gone the way that they did. She asked for emergency leave and it was subsequently denied. She tried talking to someone in confidence the trust was broken. She tried hurting herself but the pain was still there. Everything was too much on her and she couldn't take it anymore. As she stated earlier she is truly sorry and she really regrets leaving the way that she did. (7) In closing, she asked that all things be considered when making a major decision in her life. She is asking that he please allow her to separate from the Army in lieu of trial by court-martial. She has five beautiful children, and she is asking that he not take her out of their lives. Please forgive her for deserting the military. 11. The separation authority approved the applicant's request for discharge on 3 June 2003, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. 12. The applicant was discharged on 27 June 2003, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court- martial. The DD Form 214 she was issued shows she was discharged in the lowest enlisted grade and her service was characterized as UOTHC. Her DD Form 214 further shows her narrative reason for separation as "In Lieu of Trial by Court-Martial," and she had completed 1 year, 1 month, and 16 days of net active service, 3 months and 21 days of prior active service, 1 month and 29 days of inactive service. 13. The ABCMR denied the applicant's request for an upgrade on 2 May 2019. 14. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief BCM/NRs 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 15. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 16. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. Her hardcopy military medical records were not available for review. The applicant checked the blocks for PTSD and other mental health on her application, but no medical records were provided for review. A review of her service record indicates the applicant provided a sworn statement after returning from AWOL. She wrote that she went AWOL due to being pregnant and difficult with her children’s grandmother. A review of the VA’s Joint Legacy Viewer indicates the applicant has not been evaluated or treated in the VA system. She does not have a service connected disability rating. There is no documentation to support a behavioral health diagnosis at the time of her discharge. There is no documented psychiatric diagnosis to consider with respect to mitigation. In addition, PTSD is not a mitigating factor for failure to pay debt of $1,275.38. * Did the applicant have a condition or experience that may excuse or mitigate the discharge? No. * Did the condition exist or experience occur during military service? No. * Does the condition or experience actually excuse or mitigate the discharge? Not applicable. * Does the condition or experience outweigh the discharge? Not applicable. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, her record of service, the frequency and nature of her misconduct, and the reason for her separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA Medical Advisor. 2. The Board found the circumstances surrounding the end of her marriage that led to the applicant’s extended period of AWOL warrant clemency. The Board found it appears her chain of command did not provide appropriate support or advice regarding the turmoil in her personal life, which contributed to her decision to go AWOL. Based on a preponderance of the evidence, the Board determined the applicant’s character of service should be changed to under honorable conditions (general). 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 amendment of the ABCMR’s decision in Docket Number AR20180014688, dated 2 May 2019. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing her DD Form 214 to show her character of service as under honorable conditions (general). 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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Title 10, United State Code, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. ==== At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge certificate. 4. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 5. 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; sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to 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. 6. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs 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 type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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, BCM/NRs 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// ABCMR Record of Proceedings (cont) AR20210014154 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1