IN THE CASE OF: BOARD DATE: 16 March 2022 DOCKET NUMBER: AR20210014817 APPLICANT REQUESTS: The applicant requests an upgrade of her under other than honorable conditions (UOTHC) discharge, and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-written statement * Medical Documents 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 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, in effect: a. She was honorably released from active duty after completing initial active-duty training (IADT). She believes the decision to discharge her under other than honorable conditions from the U.S. Army Reserve (USAR) was unjust due to trauma during basic combat training. She later experienced depression and post-traumatic stress disorder (PTSD). She had problems following directions during training from stress and anxiety and currently suffers from. During her time in the service she had young children to support and once she was released she had to obtain employment but could never keep employment for any length of time. When she returned home she was examined at the Department of Veterans Affairs (VA) hospital in which they claim no record was found. b. From the start of her enlistment she had problems with nerves and was missed diagnosed from the start. Her injury in basic training was caused by a broken pelvic bone. Her drill sergeant insisted that she carry on with my training, but it was impossible for her to walk until they had to send her to the hospital. Once she went back to the barracks, she gave her sergeant her medical orders. She was experiencing excruciating pain and was forced to carry on. She was told if she stayed overnight in the hospital she would be forced to do another 8 weeks training. Without consideration of her conditions she was forced to walk on crutches for graduation and transferred to Fort Gordon, GA. c. Although her pelvis healed itself somehow it did not heal properly which added more stress and anxiety. Her responsibility was a family to support therefore completion of training and returning home was critical being the sole provider of her 3 children and adding an abusive husband that would not work. Once she returned home she was told that she could not return to her previous job because she chose to join the military. Management called her in the office and intimidated her to the point she was in tears, and as a result they claimed she could be legally terminated. The following month her family moved to to pursue a better environment and job opportunities that did not last. She further states: d. Her future spiraled into nothing but failures in life and an unsettled future for her 3 children. African-American women had a difficult time in the south and she was forced to apply for public assistance. The person she trusted to keep her children came on site and threaten if she did not leave her children would be left alone for the 2 weeks of annual training. She explained her situation to her sergeant in command and was forced to leave because of hardship and her children being abandoned; her sergeant reminded her that she could face a dishonorable discharge, with no other alternative but to leave, the sergeant said he would report the case “hardship”; the next time she saw her papers from the Reserve it said “dishonorable” discharge but her papers from basic training and advanced individual training were honorable. She is not trying to justify her decision, nonetheless, she prays you can see why she had no choice. Her plea for correction is based on trauma, hardship, PTSD, depression and having no one to help her with her children 3. On 20 June 1980, the applicant enlisted in the United States Army Reserve (USAR) for a period of 6 years. 4. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she entered active duty for the purpose of completing IADT on 2 July 1980. The applicant completed IADT, and was honorably released from active duty and transferred to her USAR unit on 22 November 1980. 5. On 13 February 1982, the applicant was notified by her commander that she was to perform Annual Training (AT) during period of 12 to 26 June 1982 at Fort McCoy, WI. She acknowledged receipt of the notification and information contained in the basic letter concerning her Annual Training dates and site. 6. On 7 June 1982, the commander sent a letter to the applicant and indicated that she was absent from the scheduled unit training assembly or multiple unit training assembly on 5 and 6 June 1982. The letter was sent to the applicant by certified mail. 7. On 28 June 1982, the applicant’s commander notified her that he was initiating action to separate her from the USAR for misconduct, Chapter 7; if separated her service may have been characterized as UOTHC. The reason for the proposed action was based on the applicant being AWOL from Annual Training at Fort McCoy, WI, from 12 to 26 June 1982. Acknowledgement of the letter was required by 12 August 1982. 8. On 6 July 1982, the applicant acknowledged receipt of the notification for proposed separation by signing the certified receipt. 9. On 17 August 1982, the commander formally recommended the applicant be considered for separation for “misconduct due to unsatisfactory participation” under the provisions of paragraph 4-13 (Unexcused Absence from Annual Training), Army Regulation (AR) 135-91 (Policies and Procedures Governing Satisfactory Participation). 10. On 25 August 1982, Headquarters, 123d USAR Command, Fort Benjamin- Harrison, IN, issued Orders 34-29 reducing the applicant to the rank/grade of private (PVT/E-1). The USAR Command also issued Orders 34-30 discharging the applicant from her USAR unit for unsatisfactory participation and assigning her to the USAR Control Group (Annual Training) [now known as the Individual Ready Reserve (IRR)], effective 26 August 1982. Her service was characterized as UOTHC. The authority for discharge was listed as paragraph 2-23a, AR 140-10 (Assignments, Attachments, Details, and Transfers). 11. Orders Number D-07-908050 discharged the applicant under other than honorable conditions from the “USAR Ready” effective 15 July 1986. The authority for discharge was listed as AR 135-178 (Enlisted Administrative Separations). 12. The applicant’s statements and medical documents that she provided in support of her case will be provided to the Board and Army Review Boards Agency medical staff for review and consideration. 13. AR 15-185 (ABCMR), states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. It will decide cases on the evidence of record and it is not an investigative body. Paragraph 2–11 states that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 14. Army Regulation 135-91 (Policies and Procedures Governing Satisfactory Participation) prescribes policies, procedures, and responsibilities pertaining to satisfactory completion of the Ready Reserve service obligation and enforcement procedures pertaining thereto for certain personnel of the Reserve Components. Section Ill pertains to unexcused absence. It states, in pertinent part, that enlisted members who are obligated by statue or contract will be charged with unsatisfactory participation when without proper authority they: (1) accrue in any 1-year period, a total of nine or more excuse absences from schedules drills; (2) fail to obtain a unit of assignment during a leave of absence; and (3) fail to attend or complete Annual Training. Statutorily or contractually obligated enlisted members who are charged with unsatisfactory participation may be transferred to the Individual Ready Reserve (IRR). 15. 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: mental health conditions, including PTSD; traumatic brain injury (TBI); 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. 16. In reaching its determination, the Board can consider the applicant's petition, their service record, and statements in light of the published guidance on equity, injustice, or clemency. 17. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military records. The Armed Forces Health Longitudinal Technology Application (AHLTA), Federal Electronic Health Record (FEHR) & Health Artifacts Image Solutions (HAIMS) was not in use at the time of her service. The applicant asserted she developed PTSD after basic training. She reported the reason for missing training was due to issues with childcare. A review of the civilian treatment records submitted contained a problem list with the diagnoses of Major Depressive Disorder (MDD), ADHD, and Generalized Anxiety Disorder (GAD). A review of JLV indicates the applicant has not been evaluated or treated in the VA system. She does not have a service-connected disability rating. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is no documentation to support a behavioral health diagnosis at the time of her discharge. It is acknowledged the applicant has been diagnosed with behavioral health conditions in 1987. There is nothing to suggest she did not meet retention standards at the time of her discharge. In addition, none of her psychiatric conditions would be considered a mitigating factors for the misconduct that led to her discharge. a. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) No (2) Did the condition exist or experience occur during military service? (a) No (3) Does the condition or experience actually excuse or mitigate the discharge? (a) No (4) Does the condition or experience outweigh the discharge? (a) No BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of her characterization of service. One potential outcome was to grant relief with an upgrade of the applicant’s discharge to under honorable (general) conditions based on liberal consideration and minor infractions. However, the upon review of the applicant’s petition, available military records and medical review, the Board concurred with the medical opinion finding there is there is no documentation to support a behavioral health diagnosis at the time of her discharge. It is acknowledged the applicant has been diagnosed with behavioral health conditions in 1987. 2. The Board determined there is nothing to suggest she did not meet retention standards at the time of her discharge. In addition, none of her psychiatric conditions would be considered a mitigating factor for the misconduct that led to her discharge. The Board found the applicant does not have a service connected disability rating The Board determined there is insufficient evidence to support the applicant had conditions or experience that mitigated her misconduct. Based on this, the Board determined relief was not warranted and denied relief. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X : 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 Army Board for Correction of Military Records (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 15-185 (ABCMR) states that, the ABCMR begins its consideration of each case with the presumption of administrative regularity. It will decide cases based on the evidence of record and it is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Paragraph 2–11 states that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 135-91 (Policies and Procedures Governing Satisfactory Participation) prescribes policies, procedures, and responsibilities pertaining to satisfactory completion of the Ready Reserve service obligation and enforcement procedures pertaining thereto for certain personnel of the Reserve Components. Section Ill pertains to unexcused absence. Paragraph 4-9 pertains to conditions of unexcused absence. It states, in pertinent part, that enlisted members who are obligated by statue or contract will be charged with unsatisfactory participation when without proper authority they: (1) accrue in any 1-year period, a total of nine or more excuse absences from schedules drills; (2) fail to obtain a unit of assignment during a leave of absence; and (3) fail to attend or complete AT. Statutorily or contractually obligated enlisted members who are charged with unsatisfactory participation may be transferred to the IRR. 4. Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers. Section VI of the regulation governs transfer to the IRR of unsatisfactory participants. Paragraph 2-23a stated that statutorily obligated enlisted members who are credited with less than 24 months of AD/ADT may be transferred to the IRR upon the approved recommendation of a board of officers, with characterization of service, as provided by Army Regulation 135-178, chapter 7. Paragraph 7-45 of the same regulation, in effect at that time, stated that all members separated under this section who have not completed their statutory military service obligation would be transferred to the IRR to complete that obligation. 5. Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction) prescribes policies and procedures pertaining to the classification, promotion, reduction, and grade restoration of enlisted Soldiers of the USAR. Chapter 3 pertains to reductions and restoration. Paragraph 3-28d states, in pertinent part, that commanders may reduce members when transferred to the IRR for unsatisfactory participation. Obligors who have completed less than 24 months of active duty/active- duty training and transfer is approved under the provisions of Army Regulation 140-10, chapter 2, the separation authority will direct a one grade reduction in the case of those members in pay grade E-2 or higher. 6. On 3 September 2014, the Secretary of Defense (Honorable Mr. Hagel) 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. The memorandum also contains guidance that states: a. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. b. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 7. 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. 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. 8. 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 (BCM/NRs) regarding equity, injustice, or clemency determinations. a. 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. b. 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. 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) AR20210014817 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1