IN THE CASE OF: BOARD DATE: 24 May 2023 DOCKET NUMBER: AR20220010974 APPLICANT REQUESTS: an upgrade of her under other than honorable conditions (UOTHC) discharge and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement, dated 31 January 2023 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 8 December 1981 * Civilian medical records, Aspire Health Partners, dated 28 to 29 June 2016 * Driver License, State of Florida, issue date 19 December 2022 (22 pages) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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, in effect, while attending advanced individual training at Fort Jackson, SC, she went home on leave when her sister overdosed and was in a coma. Her sister's newborn child had no one to care for him. She contacted her recruiter, he stated he would contact her Company Commander to get her leave granted. When she returned to her unit, she was told she was absent without leave (AWOL), and she needed to report to Fort Bragg, NC. While awaiting a hearing at Fort Bragg, she was in a head-on collision and hospitalized. Upon her release from the hospital, she requested a discharge from the Army. The Army would have been a great career for her, but her sister's overdose and her car accident affected her mentally. She has suffered from depression since she was a child due to lack of parental care, and physical and sexual abuse. She came into the Army with the hope of building a career and a better life. She was hospitalized under the Baker Act. A discharge upgrade would assist her in getting the help she needs to continue on the right path. 3. The applicant enlisted in the U.S. Army Reserve on 31 July 1980 for a 6-year period. On that same date, she was ordered to initial active duty for training at Fort Jackson, SC. 4. Two DA Forms 4187 (Personnel Action) show the following changes in the applicant's duty status: * Present for Duty to AWOL on 20 October 1980 * AWOL to Dropped from the Rolls on 19 November 1980 5. The applicant surrendered to military authorities on 22 June 1981. The corresponding DA Form 4187 shows her duty status changed from "Dropped from the Rolls" to "Present for Duty." 6. A DA Form 4187, dated 17 August 1981, and the attached marriage record, shows the applicant was married on 14 February 1981. Subsequently, her last name was changed from 7. Court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice; however, the relevant DD Form 458 (Charge Sheet) is not available for review. 8. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding her discharge processing. However, her DD Form 214 shows she was discharged on 8 December 1981, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10, for conduct triable by court-martial. Her character of service was UOTHC. She was credited with 5 months and 17 days of net active service and 2 months and 20 days of prior active service. She had lost time from 20 October 1980 to 21 June 1981. 9. The applicant provides: a. 55 pages of civilian medical records from Aspire Health Partners, which show she was hospitalized under the Baker Act from 28 to 29 June 2016. b. A copy of her Florida State driver's license issued on 19 December 2022, which shows her last name as 10. Administrative separations under the provisions of Army Regulation 635-200, Chapter 10 are voluntary requests for discharge for the good of the service, in lieu of a trial by court-martial. An UOTHC character of service is normally considered appropriate. 11. The Board should consider the applicant's argument and/or evidence in accordance with the published equity, injustice, or clemency determination guidance. 12. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of her under other than honorable conditions (UOTHC) discharge. The applicant asserts “other mental health” as a mitigating factor. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * Applicant enlisted into the RA on 31 July 1980. * The applicant was AWOL 20 October 1980, dropped from Rolls 19 November 1980 and surrendered herself to authorities 22 June 1981. * The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding her discharge processing. However, her DD Form 214 shows she was discharged on 8 December 1981, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10, for conduct triable by court-martial. Her character of service was UOTHC. c. Review of Available Records Including Medical: d. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, ABCMR Record of Proceedings (ROP), self-authored statement, civilian medical records, DD 214, service records, and separation documentation. The VA electronic medical record and DoD health records were reviewed, though minimal data was available. Lack of citation or discussion in this section should not be interpreted as lack of consideration. e. The applicant asserts that other mental health conditions, to include depression mitigated her discharge. The applicant had a significant family event occur which led to her needing leave and thinking she was cleared to be gone, only to discover she was considered AWOL. Her letter suggests she’d only been gone a few weeks. Per her military records, she did not surrender herself for nearly 8 months. After, and while awaiting her hearing, she was reportedly in a head on collision, and after opted to voluntarily discharge (in lieu of court martial). There is insufficient evidence that she was ever diagnosed with a mental health condition or receiving mental health support while in the service. No medical records from her time in service were made available by the applicant, nor were they present in her electronic health record. f. The crisis events described, in addition to childhood abuse, have reportedly led to ongoing mental health concerns. The applicant was involuntarily hospitalized (“Baker Act”) 28 to 29 June 2016. She also supplied medical records supporting diagnoses during this hospitalization, but in a self-authored letter did report difficulty getting additional medical records due to them only being held onto for 7 years. Her medical records indicate a history of major depression, polysubstance use, and command type auditory hallucinations, telling her to kill herself and others. At the time of the documented hospitalization, she was diagnosed with alcohol use disorder mild and cocaine use disorder mild. The records provided do not indicate that she began experiencing any mental health conditions during her time in service. g. After reviewing the application and all supporting documents, this Agency Behavioral Health Advisor cannot provide a full opine regarding mitigation based on behavioral health diagnoses without documentation of the specific misconduct that led to her discharge. In addition, the applicant has asserted “other mental health” as a mitigating factor in her discharge, however, no evidence from her time in service was provided to support this assertion. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant attests to having a mitigating mental health condition or experience. 2. Did the condition exist or experience occur during military service? Yes, applicant appears to assert depression for most of her life, seemingly to include during her time in service. 3. Does the condition or experience actually excuse or mitigate the discharge? Unable to opine. The applicant asserts mitigation due to other mental health condition(s). This assertion alone is worthy of consideration by the Board. There is insufficient (no) documentation to support a behavioral health condition was present at the time of her misconduct or discharge from the Army, though there is evidence she has suffered from depression and polysubstance use since her discharge. Also, without documentation of the specific misconduct that led to her discharge, a full opine regarding mitigation based on behavioral health diagnoses cannot be provided. ? 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 advising official finding insufficient (no) documentation to support a behavioral health condition was present at the time of her misconduct or discharge from the Army, though there is evidence she has suffered from depression and polysubstance use since her discharge. The Board determined from the advising official a full opine cannot be provided regarding mitigation based on behavioral health diagnoses without documentation of the specific misconduct that led to her discharge. In addition, the applicant has asserted “other mental health” as a mitigating factor in her discharge, however, no evidence from her time in service was provided to support this assertion. 2. Furthermore, the Board found the applicant provided no post service accomplishment or letters of support to attest to her honorable conduct that might have mitigated her characterization of service. The Board agreed the applicant had numerous instances of misconduct and was credited with 5 months and 17 days of net active service during her initial enlistment. The Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to an honorable discharge. Therefore, the Board denied relief. 3. 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. REFERENCES: 1. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 3. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11 states applicants do not have the right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. 4. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides, in pertinent part, 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. b. 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. c. 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. 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 Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including post-traumatic stress disorder (PTSD); traumatic brain injury; 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. 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, 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// ABCMR Record of Proceedings (cont) AR20220010974 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1