IN THE CASE OF BOARD DATE: 8 June 2022 DOCKET NUMBER: AR20210016465 APPLICANT REQUESTS: her under other than honorable conditions (UOTHC) discharge be up graded. The applicant also requests she be afforded a video or telephonic appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated with a self- authored statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 is requesting her characterization of service be upgraded due to events that led to make the decisions she did that ended in her UOTHC. Those events were very traumatizing and embarrassing to me at that time. The older she has gotten the more she has realized that the events that happened to her in the Army were not her fault and she had no reason to feel embarrassed. She is no longer afraid to discuss these events she doesn't feel like she should have an UOTHC because of the traumatizing things that she went though. b. The things that happened to her in the Army was not acceptable. At that time, she was scared to tell anyone in fear of retaliation. She felt the only option she had was to go AWOL (absent without leave). She would never have gotten out of the Army had those events not happened. She definitely never had thoughts of going AWOL until these events occurred, otherwise she could have gone AWOL in boot camp or during her advanced individual training (AIT). She just wants someone to look deeper into this and hear my story. 3. On her DD Form 149, the applicant notes post-traumatic stress disorder (PTSD), other mental health issues, and sexual assault/harassment issues are related to her request, as contributing and mitigating factors in the circumstances that resulted in her separation. The applicant does not provide any specific information related to these concerns. 4. Prior to being accepted into the military, the applicant requested and received a Waiver of Moral Disqualification for the following misdemeanors on: * April 1999, for aggravated battery, resulting in 1-day juvenile detention and a fine * 12 October 1999, for petty theft of clothing, resulting in 2 days in jail * 31 December 1999, for petty theft of clothing, resulting in a fine and completion of 15 hours of community service 5. The applicant enlisted in the Regular Army for 3 years on 22 March 2000, completed training and was awarded the military occupational specialty 88M (Motor Transport Operator). 6. The complete facts and circumstance surrounding the applicant's periods of AWOL and her discharge processing are not available. 7. A Deserter/Absentee Wanted by The Armed Forces from, date 30 March 2001 shows the applicant was AWOL from 27 - 28 February 2001. The form is over stamped with "Escape Risk Previous Absentee". 8. A DD Form 616 (Report of Returnee), date 9 May 2001, show the applicant was AWOL from 27 February 2001 until 9 May 2001. 9. A DD Form 458 (Charge Sheet) was initiated on 28 March 2001 showing the applicant was AWOL commencing on 27 February 2001. The form does not include a terminal date for this AWOL. 10. Court-martial charges were preferred against the applicant on 14 May 2001, for violations of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) shows she was charged with: * AWOL, from on or about 23 December 2000, until on or about 10 January 2001 * AWOL from on or about 27 February 2001 until on or about 9 May 2001 11. The applicant completed an Admission of AWOL for Administrative Purposes Memoradum on 14 May 2001. a. She acknowledged that she had been advised by her defense counsel that at the that time the government had not received the necessary documentation and/or records with which to obtain a conviction by a court-martial. This is not due to any fault of the government but merely to the time required to request and mail the documents and records. Further, she had been advised by her military counsel that they could not completely advise her without these records. Nevertheless, knowing all this to be true, she waived all defenses that may have become known had her defense counsel been able to review her records. b. Knowing all this to be true, she knowingly, willingly, and voluntarily declared that she was AWOL from the U.S. Army from on or about 23 December 2000, until on or about 10 January 2001; and from on or about 27 February 2001 until on or about 9 May 2001. 12. The applicant consulted with legal counsel on 14 May 2001 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 his rights and benefits as a veteran under both Federal and State laws. b. She was advised she could submit any statements she desired in her own behalf; however, the applicant waived this right. 13. The applicant's chain of command recommended approval of the applicant's request and that she be discharged with a UOTHC. 14. The separation authority approved the applicant's request for discharge on 25 January 2002, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed that the applicant be reduced to the lowest enlisted grade and receive a UOTHC. 15. The applicant was discharged on 5 February 2002, 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 confirms he was discharged in the lowest enlisted grade and her service was characterized as UOTHC. Her DD Form 214 further shows: * she had completed 1 year, 7 months, and 16 days of net active service with 267 days served in an excess leave status * she had not completed her first full term of service * she was separated on incomplete records * she had three periods of lost time totaling 87 days * she was awarded or authorized the Army Service Ribbon 16. A report of a review of the U.S. Army Criminal Investigation Division, U.S. Army Crime Records Center records, dated 9 March 2022, failed to locate any Criminal Investigative or Military Police Reports for the applicant. 17. 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. a. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, she 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. b. The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition. c. The Board should consider the applicant's statement in accordance with the published equity, injustice, and clemency determination guidance. 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 may have existed during or might have been aggravated by military service, and that the condition or experience may excuse or mitigate the discharge. 18. 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. 19. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Solutions (HAIMS) was in limited use during her time in service and only contains radiology records for the applicant. Her hardcopy medical records were not available for review. While the applicant checked blocks for PTSD, other mental health issues, and sexual assault/harassment issues on her application but no medical records were provided for review. No further information was provided. A review of JLV indicates the applicant has not been evaluated or treated in the VA system. 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. There are no documented psychiatric diagnoses to consider with respect to mitigation. 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) N/A (4) Does the condition or experience outweigh the discharge? (a) N/A 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. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the medical opinion finding there is no documentation to support a behavioral health diagnosis at the time of her discharge. There are no documented psychiatric diagnoses to consider with respect to mitigation. The applicant provided no post service accomplishments or character letters of reference for the board to weigh a clemency determination. The Board agreed there is no evidence supporting the applicant was experiencing PTSD or mental health condition while on active service, and JLV is void of any history of VA medical treatment. Based on this, the Board determined relief was not warranted and denied relief. 2. 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 necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X 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, United States Code (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. 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 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. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. It provides: 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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 provides 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. 5. 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. 6. 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. 7. 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) AR20210016465 1 ABCMR Record of Proceedings (cont) AR20210016465 1