IN THE CASE OF: 
BOARD DATE: 26 May 2023 
DOCKET NUMBER: AR20220011267 

APPLICANT REQUESTS: Reconsideration of her request for upgrade of her under other than honorable conditions (UOTHC) discharge. 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
. DD Form 149 (Application for Correction of Military Record) (two) 
. Department of Veterans Affairs (VA) Administrative Decision (partial) 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 AR20120018384 on 30 April 2013. 

2. 
The applicant states she was separated due to sexual assault, this is in her military records. She states she reported the sexual harassment to her command during basic training and following her rape. She was released with an UOTHC discharge but due to the severity of her problems she has been granted an honorable discharge [by the VA] under Chapter 17. 

3. 
The applicant enlisted in the Regular Army on 21 February 1996 for a period of 3 years. She did not complete training or receive a military occupational specialty. 

4. 
DA Forms 4187 (Personnel Action), show she departed her unit in an absent without leave (AWOL) status on 31 October 1996 and was dropped from the unit rolls on 1 December 1996. 

5. 
A DD Form 616 (Report of Return of Absentee), dated 30 April 1997, shows she was apprehended by civil authorities and returned to military control on or about 26 April 1997. 

6. 
Court-martial charges were preferred against the applicant on 29 April 1997 for violation of the Uniform Code of Military Justice (UCMJ). The DD Form 458 (Charge 

Sheet) shows she was charged with being AWOL from on or about 31 October 1996 until on or about 26 April 1997. 

7. 
The applicant consulted with legal counsel on 1 May 1997 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 VA, and she could be deprived of her rights and benefits as a veteran under both Federal and State laws. 

b. 
She was advised she could submit statements in her own behalf; however, she waived this right and elected not to have a separation medical examination. 


8. 
On 9 July 1997, the applicant's immediate commander recommended approval of her request with the issuance of an UOTHC discharge. 

9. 
The separation authority approved the applicant's request for discharge on 18 July 1997, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. He directed that the applicant be reduced to the lowest enlisted grade and receive a UOTHC discharge. 

10. 
The applicant was discharged on 11 August 1997 in the grade of E-1. Her DD Form 214 shows she was discharged under the provisions of Army Regulation 635­200, Chapter 10, in lieu of trial by court martial and her service was characterized as UOTHC. She was credited with 11 months and 24 days of net active service with 177 days of lost time. 

11. 
On 2 August 2002, after careful review of her application, military records and all other available evidence, the Army Discharge Review Board determined she was properly and equitably discharged. Accordingly, her request for a change in the character and/or reason of her discharge was denied. 

12. 
The applicant provides a VA administrative decision that states, it was determined that the events leading up to her period of AWOL were of a nature so severe as to warrant an honorable characterization determination for VA purposes. 

13. 
On 30 April 2013, the ABCMR denied the applicant's request for an upgrade of her character of service stating: 


a. 
The applicant's record was void of any evidence and she did not provide any evidence that she was subjected to sexual harassment or that she ever sought assistance in dealing with a harassment complaint from her chain of command, the ClD, or any of the numerous options available to her at the time. She had an opportunity to submit a statement with her request for discharge wherein she could have raised this issue in mitigation. 

b. 
The Board determined that she was properly and equitably discharged in accordance with the regulations in effect at the time. There is no evidence of procedural errors which would have jeopardized her rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the applicant's discharge accurately reflects her overall record of service. 


14. 
On 23 January 2023, in the processing of this case the U.S. Army Criminal investigation Command (ClD) was asked to search their criminal file indexes, for a review of their records pertaining to the applicant. 

15. 
On 27 January 2023, the Army CID, Crime Records Center responded and forwarded a redacted copy of a report of sexual assault, dated 8 July 1997, under the last name . 


a. 
The report indicated that the investigation failed to establish sufficient credible evidence to either prove or disprove the offenses of rape and indecent assault as alleged by . 

b. 
On 8 May 1997, while a trainee, the applicant was implicated in sexual misconduct with other soldiers in training but had never been associated with a cadre member until the initiation of this investigation. The applicant informed Captain , she had consensual sexual intercourse with her recruiter, and she had fraudulently enlisted in the military. The unit did not pursue the issue of fraudulent enlistment on the advice of the Staff Judge Advocate. 

c. 
The investigation was terminated, in that the Special Agent in Charge determined furtherance of the investigation would be of little or no value, and the leads remaining to be developed were not significant. 


16. 
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. 

17. 
In determining whether to grant relief the Boards for Correction of Military/Navy Records (BCM/NR) can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 

18. 
MEDICAL REVIEW: 


a. 
The applicant requests reconsideration of her previous request for upgrade of her UOTHC discharge to honorable. She contends her misconduct was related to PTSD/MST. 

b. 
The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted into the Regular Army on 21 February 1996; 2) DA Forms 4187 (Personnel Action), show she departed her unit in an absent without leave (AWOL) status on 31 October 1996 and was dropped from the unit rolls on 1 December 1996; 3) Court-martial charges were preferred against the applicant on 29 April 1997 for violation of the Uniform Code of Military Justice (UCMJ). The DD Form 458 (Charge Sheet) shows she was charged with being AWOL from on or about 31 October 1996 until on or about 26 April 1997; 4) The applicant consulted with legal counsel on 1 May 1997. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of AR 635-200, Chapter 10, for the good of the service; 5) On 9 July 1997, the applicant's immediate commander recommended approval of her request with the issuance of an UOTHC discharge; 6) The applicant was discharged on 11 August 1997, under the provisions of AR 635-200, Chapter 10, in lieu of trial by court martial. 

c. 
The ROP, casefiles, and VA electronic medical record, JLV, were reviewed. The military electronic medical record, AHLTA, was not reviewed as it was not in use during the applicant’s time in service. No hardcopy military BH-related treatment records were provided for review. Included in the applicant’s casefile was a redacted CID report, dated 8 July 1997, which showed the applicant made a report of sexual assault through the Army’s 1-800 “Hotline”, in which she implicated a DS. Although the report indicated 


that the investigation failed to establish sufficient credible evidence to either prove or disprove the offenses of rape and indecent assault, the applicant’s actions of filing the charges and going AWOL should be viewed as markers for possible MST. 
d. 
A review of JLV showed the applicant has a history of receiving BH-related treatment with the VA, however, she is currently not service connected for a disability. Records suggest the applicant first engaged for BH-related treatment with the VA at the Central TX, VA on 11 January 2022, with a chief complaint of PTSD related symptoms. She reported a history of childhood sexual trauma, military sexual trauma, and being forced into sex trafficking in 2014 and 2021. The applicant reported having escaped from the traffickers in June 2021 and had been residing at Safe Alliance (a VA housing program for Vets) since entering the program in November 2021. She reported still feeling unsafe, as she believed the traffickers continued to look for her. She reported severe anxiety, fear, nightmares, flashbacks, increased irritability, impulsivity, recklessness, and insomnia. The provider noted that though some of the applicant’s statements strike as paranoid in nature, documentation in the charts supported her remarks. She was diagnosed with PTSD Chronic, Insomnia, and Generalized Anxiety Disorder, started on psychotropic medication and scheduled for follow-up. Records show the applicant was treated primarily via psychotropic medication through May 2022 with moderate success. She was seen for Psychological Intake on 2 June 2022, whereby she reported continued symptoms of PTSD and Insomnia, and growing frustration regarding a lack of progress with prosecuting her abuser/trafficker. The applicant’s diagnoses of record remained PTSD Chronic, Insomnia, and GAD. She was scheduled for follow-up with a plan for Cognitive Behavioral Therapy and engaged in CBT through 11 August 2022 with good progress. She has remained in outpatient treatment, via medication management through 26 April 2023, with diagnoses of PTSD/MST, MDD, Insomnia, and PTSD. Records showed the applicant was also enrolled in the Homeless Veteran Program from November 2021 through January 2023. 

e. 
The applicant contends her misconduct was related to PTSD secondary to MST after being sexually assaulted on two occasions by her DS, during BCT. A review of the records was void of any BH-related diagnosis or treatment during service. Post service records showed the applicant diagnosed with PTSD/MST, MDD, GAD, and Insomnia. Included in the applicant’s casefile was a redacted CID report, dated 8 July 1997, which showed the applicant made a report of sexual assault through the Army’s 1-800 “Hotline”, on 3 March 1997, in which she implicated the DS. Although the report indicated that the investigation failed to establish sufficient credible evidence to either prove or disprove the offenses of rape and indecent assault, the applicant’s actions of filing the charges and going AWOL are reasonable markers for MST. Given there is an association between PTSD and avoidance of re-traumatization, there is a nexus between the applicant’s misconduct characterized by AWOL and her diagnosis of PTSD/MST. As, such the applicant’s misconduct is mitigated by her disorder. This advisor recommends the Board consider upgrading the applicant discharge characterization to HD/SA. 

f. 
Based on the available information, it is the opinion of the Agency BH Advisor that there is evidence in the records that the applicant had a condition or experience during her time in service that mitigated her misconduct. 


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 is diagnosed by VA providers with PTSD secondary to MST, MDD, GAD, and Insomnia. 

2. 
Did the condition exist or experience occur during military service? Yes. The applicant contends she was raped by her DS during BCT. 

3. 
Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant contends her misconduct was related to PTSD secondary to MST after being sexually assaulted on two occasions by her DS, during BCT. A review of the records was void of any BH-related diagnosis or treatment during service. Post service records showed the applicant diagnosed with PTSD/MST, MDD, GAD, and Insomnia. Included in the applicant’s casefile was a redacted CID report, dated 8 July 1997, which showed the applicant made a report of sexual assault through the Army’s 1-800 “Hotline”, on 3 March 1997, in which she implicated the DS. Although the report indicated that the investigation failed to establish sufficient credible evidence to either prove or disprove the offenses of rape and indecent assault, the applicant’s actions of filing the charges and going AWOL are reasonable markers for MST. Given there is an association between PTSD and avoidance of re-traumatization, there is a nexus between the applicant’s misconduct characterized by AWOL and her diagnosis of PTSD/MST. As, such the applicant’s misconduct is mitigated by her disorder. This advisor recommends the Board consider upgrading the applicant discharge characterization to HD/SA. 


BOARD DISCUSSION: 
After reviewing the application and all supporting documents, the Board found the relief was warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, her record of service, the frequency and nature of her misconduct, the reason for her separation and whether to apply clemency. The Board concurred with the advisory official who found sufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The Board found that relief was warranted based upon guidance for consideration of discharge upgrade requests. 
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 the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20120018384 on 30 April 2013. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant’s DD Form 214 for the period ending 11 April 2008 showing her character of service as honorable and the narrative reason as “Secretarial Authority.” 
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 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. 

2. 
Army Regulation 15-185 (ABCMR) sets forth procedures for processing requests for the correction of military records. Paragraph 2-15a governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR. The applicant must provide new evidence or argument that was not considered at the time of the ABCMR's prior consideration. The ABCMR will decide cases 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. 

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 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 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. 


4. 
Title 38 Current Federal Regulation § 3.360 (Service-connected health-care eligibility of certain persons administratively discharged under other than honorable conditions), states the health-care and related benefits authorized by Title 38, U.S. Code, provided to certain former service persons with administrative discharges under other than honorable conditions for any disability incurred or aggravated during active military, naval, or air service in the line of duty including to allow for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, and anxiety disorder. The regulation also authorizes the VA to render an administrative decision to determine if the circumstances of a service member's separation under other than honorable conditions meet the criteria for granting a determination that their reason for separation authorized health care under Chapter 17. 

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 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 a 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. 
The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. 


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