IN THE CASE OF:  

BOARD DATE: 22 August 2022 

DOCKET NUMBER:  AR20220001532


APPLICANT’S REQUEST:  The applicant requests the upgrade of her under other than 
honorable conditions discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10 (Armed 
Forces), United States Code (USC), section 1552 (b) (Correction of Military Records:  
Claims Incident Thereto). 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 first sergeant (1SG) from another company sexually harassed 
her; because she kept ignoring his advances and made excuses about working late, the 
1SG found a reason to put her out of the Army. 

	a.  The applicant notes that she does not mean to say her other actions were 
appropriate, but she points out there were Soldiers, to include the applicant’s roommate, 
who did the same thing, but, unlike the applicant, the roommate never received any 
punishment. In addition, the roommate was the only one to tell the applicant what she 
was doing. 

	b.  The other Soldiers stole and tried to sell ammunition, and they only got 
nonjudicial punishment (NJP). The applicant had just 6 months remaining on her 
enlistment contract, and she decided she was not going to reenlist or extend to go to 
Korea; her 1SG felt the applicant should have reenlisted. 

	c.  The applicant has had a hard time talking about the harassment she experienced; 
she did not think anyone would take her word over that of a 1SG, so the applicant 
simply asked how to get out of the Army quickly. However, these days more women are 
coming forward to talk about the sexual harassment they had to endure while on active 
duty; the applicant believes that, as a young, outgoing, and outspoken black female, 
she was suffered consequences for declining the advances of her superior. The 
applicant states, “I did what I did, which was wrong, to get away from him (the 1SG), 
and it cost me the last 6 months of my military career. I always think about if I had just 
slept with him, he might have just went away, and I wouldn’t have done extreme things 
to get away from him.”

3.  The applicant’s service records show:

	a.  On 23 September 1987, after obtaining her parents’ permission, the applicant 
enlisted into the Regular Army for 3 years; she was 17 years old. Upon completion of 
initial entry training and the award of military occupational specialty 71L(Administrative 
Specialist), orders assigned her to Korea, and she arrived at her unit (a medical 
battalion), on or about 20 March 1988. 

	b.  On 20 September 1988, the applicant’s battalion commander awarded her a 
Department of the Army (DA) Certificate of Achievement for her outstanding duty 
performance as a statistician during the unit’s May 1988 Expert Field Medical Badge 
Training and Testing Program. Effective 1 October 1988, the applicant’s leadership 
promoted her to private first class (PFC)/E-3. 

	c.  On 28 November 1988, her battalion commander awarded the applicant a second 
DA Certificate of Achievement for the clerical and administrative support the applicant 
provided during the battalion’s October/November 1988 Expert Field Medical Badge 
Training and Testing Program. On or about 12 March 1989, the applicant completed her 
tour in Korea, and orders reassigned her to Redstone Arsenal, AL; she arrived at her 
new unit (U.S. Army Missile Command), on 13 April 1989.

	d.  In or around May 1989, the applicant’s battalion-level commander awarded the 
applicant a Redstone Arsenal Support Activity Certificate of Achievement for her role in 
preparing the unit for its Inspector General Assistance Visit. Effective 1 September 
1989, the applicant’s chain of command promoted her to specialist (SPC)/E-4. 

	e.  On 26 January 1990, the applicant immediately reenlisted for 3 years. In or 
around March 1990, the applicant’s battalion-level commander awarded her a Redstone 
Arsenal Support Activity Certificate of Achievement because the applicant had 
processed over 150 awards, writing several of the original citations; automated the 
unit’s policy letters; organized medals and associated documentation for awards 
ceremonies; and prepared medical temporary duty orders; all in an efficient and timely 
manner. 

	f.  On 9 August 1990, Permanent Orders (PO) awarded the applicant the Driver and 
Mechanic Badge with Driver-W Component Bar. On 1 March 1991, PO awarded the 
applicant the Army Good Conduct Medal (1st Award) for the period 23 September 
1987 through 22 September 1990. 

	g.  On 10 April 1991, the applicant graduated from the Primary Leadership 
Development Course at Fort Benning, GA. On 21 May 1991, PO awarded the applicant 
the Army Achievement Medal for meritorious service from 24 October 1990 until 
6 March 1991.

	h.  On 4 March 1992, the U.S. Army Missile Command’s Director of Intelligence and 
Security suspended the applicant’s access to classified information, pending the 
outcome of an investigation that had been initiated, on 19 February 1992; the applicant 
was alleged to have stolen government property and committed fraud.

	i.  The applicant's separation packet is unavailable for review; however, her service 
record includes rank reduction orders, a memorandum indicating receipt of separation 
paperwork, and her DD Form 214 (Certificate of Release or Discharge from Active 
Duty).

		(1)  Orders Number 76-18, dated 20 April 1992, directed the applicant reduction 
from SPC to private (PV1)/E-1, effective 17 April 1992; the authority was paragraph 
6-15 (Approved for Discharge from the Service Under Other than Honorable 
Conditions), Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions).

		(2)  Memorandum for Record, dated 21 April 1992, states the applicant 
acknowledged receipt of her record of proceedings for her chapter 10 (Discharge for the 
Good of the Service), AR 635-200 (Personnel Separations – Enlisted Personnel) 
separation under other than honorable conditions. 

		(3)  The applicant’s DD Form 214 (Certificate of Release or Discharge from 
Active Duty) shows that, on 22 April 1992, the applicant was separated under other than 
honorable conditions, based on chapter 10, AR 635-200. The form indicates that 
applicant completed 4 years and 7 months of net active duty service, of which she 
served 2 years, 2 months, and 28 days on her 3-year reenlistment contract. The 
remarks section does not state her continuous honorable service from 19870923 to 
19900125; the applicant was awarded or authorized the following:

*	Army Service Ribbon
*	National Defense Service Medal
*	Overseas Service Ribbon
*	 Driver and Mechanics Badge with Driver-W Component Bar
*	Marksman Marksmanship Qualification Badge

4.  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 absence of the applicant's separation packet means we are unable to 
determine the full circumstances of her discharge; however, her service record includes 
her DD Form 214 and, based on the information provided on the DD Form 214, and due 
to the lack of evidence to the contrary, the Board presumes the applicant's leadership 
completed her separation properly. 

		(1)  AR 15-185 (ABCMR) states the ABCMR decides cases on the evidence of 
record; it is not an investigative body. Additionally, the ABCMR begins its consideration 
of each case with the presumption of administrative regularity (i.e., the documents in an 
applicant’s service records are accepted as true and accurate, barring compelling 
evidence to the contrary). The applicant bears the burden of proving the existence of an 
error or injustice by presenting a preponderance of evidence, meaning there is a greater 
than a 50 percent chance that what an applicant’s claims is true.

		(2)  The version of the military personnel records regulation, then in effect 
(AR 600-8-104 (Military Personnel Information Management Records)), required case 
files for approved separation actions to be maintained in the affected Soldiers' official 
military personnel file.

	b.  During the applicant's era of service, Soldiers charged with UCMJ violations, for 
which a punitive discharge was an authorized maximum punishment, could request 
separation under chapter 10, AR 635-200. Such requests were voluntary and available 
in-lieu of trial by court-martial. 

		(1)  While validating documents are missing, the applicant's available service 
record indicates she was pending court-martial charges for violating Article 
121 (Larceny of Military Property) and Article 132 (Frauds Against the United States).

		(2)  Both offenses included punitive discharges among the maximum 
punishments authorized by the Manual for Courts-Martial then in effect.


5.  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.  

6.  MEDICAL REVIEW: 

    a.  The applicant is applying to the Army Board for Correction of Military Records 
(ABCMR) for upgrade of her under other than honorable conditions discharge.
    b.  The applicant states a first sergeant (1SG) from another company sexually 
harassed her; because she kept ignoring his advances and made excuses about 
working late, the 1SG found a reason to put her out of the Army. 
    c.  The applicant notes that she does not mean to say her other actions were 
appropriate, but she points out there were Soldiers, to include the applicant’s roommate, 
who did the same thing, but, unlike the applicant, the roommate never received any 
punishment. In addition, the roommate was the only one to tell the applicant what she 
was doing. 
    d.  The other Soldiers stole and tried to sell ammunition, and they only got nonjudicial 
punishment (NJP). The applicant had just 6 months remaining on her enlistment 
contract, and she decided she was not going to reenlist or extend to go to Korea; her 
1SG felt the applicant should have reenlisted. 
    e.  The applicant has had a hard time talking about the harassment she experienced; 
she did not think anyone would take her word over that of a 1SG, so the applicant 
simply asked how to get out of the Army quickly. However, these days more women are 
coming forward to talk about the sexual harassment they had to endure while on active 
duty; the applicant believes that, as a young, outgoing, and outspoken black female, 
she was suffered consequences for declining the advances of her superior. The 
applicant states, “I did what I did, which was wrong, to get away from him (the 1SG), 
and it cost me the last 6 months of my military career. I always think about if I had just 
slept with him, he might have just went away, and I wouldn’t have done extreme things 
to get away from him.”
    f.  The ABCMR Behavioral Health (BH) Advisor was asked to review this case. 
Documentation reviewed includes:
*	DD Form 149 (Application for Correction of Military Record)
    g.  VA electronic medical record, Joint Legacy Viewer (JLV) was reviewed.
    h.  A review of the Armed Forces Health Longitudinal Technology Application 
(AHLTA) & Health Artifacts Image Management Solutions (HAIMS) were not reviewed 
as they were not in use at the time of service. 
    i.  JLV contains no data or diagnoses.
    j.  After reviewing the available information and in accordance with the 3 Sep 2014 
Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it 
is the opinion of the Agency Behavioral Health advisor that the applicant has a 
potentially mitigating condition of Sexual Harassment. While applying liberal 
consideration her contention of stealing ammunition to get away from the person that 
was sexually harassing would be mitigating. With regard to the Fraud charges there is 
not enough information to determine if this behavior can be medically mitigated. 
KURTA QUESTIONS:
1. Does any evidence state that the applicant had a condition or experience that may 
excuse or mitigate a discharge? Yes. Applicant claims she was sexually harassed. 
2. Did the condition exist or experience occur during military service? Yes. Applicant 
claims she was sexually harassed.
3. Does the condition or experience actually excuse or mitigate the discharge? Partially. 
After reviewing the available information and in accordance with the 3 Sep 2014 Hagel 
Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the 
opinion of the Agency Behavioral Health advisor that the applicant has a potentially 
mitigating condition of Sexual Harassment. While applying liberal consideration her 
contention of stealing ammunition to get away from the person that was sexually 
harassing would be mitigating. With regard to the Fraud charges there is not enough 
information to determine if this behavior can be medically mitigated. 

BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD 
guidance on liberal consideration when reviewing discharge upgrade requests, the 
Board determined partial relief was warranted.  Based upon the misconduct leading to 
the applicant’s separation and the medical advisor only finding partial mitigation for 
some of the misconduct, the Board concluded there was insufficient evidence of an 
error or injustice warranting a change to the applicant’s characterization of service.

The Board, however, did note that the applicant completed a period of honorable 
service which is not annotated on her DD Form 214 and recommended that change be 
completed to more accurately reflect the military service of the applicant.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:X	:X	:X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a 
recommendation for partial relief.  As a result, the Board recommends that all 
Department of the Army records of the individual concerned be corrected by adding the 
following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous 
honorable active service from 23 September 1987 until 25 January 1990.”
2.  The Board further determined the evidence presented is insufficient to warrant a 
portion of the requested relief.  As a result, the Board recommends denial of so much of 
the application that pertains to upgrading the characterization of his discharge.
3.  Prior to closing the case, the Board also noted the administrative notes below from 
the analyst of record and recommended those changes be completed to more 
accurately reflect the military service of the applicant.

		 

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):  

1.  AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 
214 was required to list all of a separating Soldier's awards and decorations. 

2.  AR 600-8-22 (Military Awards), currently in effect, states:

	a.  The Korea Defense Service Medal is awarded to members of the Armed Forces 
of the United States who have served on active duty in support of the defense of the 
Republic of Korea during the period 28 July 1954 to a date to be determined by the 
Secretary of Defense.

	b.  The Noncommissioned Officer (NCO) Professional Development Ribbon is 
awarded to Active Army, Army National Guard, and U.S. Army Reserve Soldiers for 
successful completion of designated NCO professional development courses. Soldiers 
who complete Primary Leadership Development Course are authorized to display the 
basic ribbon.

3.  The evidence of record confirms the following:

*	PO awarded the applicant the Army Good Conduct Medal (1st Award) and the 
Army Achievement Medal
*	On 10 April 1991, the applicant completed Primary Leadership Development 
Course

4.  Based on the foregoing, amend the applicant’s DD Form 214, ending 22 April 1992, 
as follows:

	a.  Add the below-listed awards:

*	Army Achievement Medal
*	Army Good Conduct Medal (1st Award)
*	Korea Defense Service Medal
*	NCO Professional Development Ribbon

REFERENCES:

1.  Title 10, USC, Section 1552(b), states 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.  Title 10, United State Code, section 1556 (Ex Parte Communications Prohibited) 
provides the Secretary of the Army shall ensure that an applicant seeking corrective 
action by 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.  AR 635-200, in effect at the time, prescribed policies and procedures for the 
administrative separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge). An honorable discharge was separation 
with honor. 

		(1)  Issuance of an honorable discharge certificate was appropriate when the 
quality of the Soldier's service generally met the standards of acceptable conduct and 
performance of duty or was otherwise so meritorious that any other characterization 
would clearly be inappropriate. 

		(2)  Where there were infractions of discipline, commanders were to consider the 
extent thereof, as well as the seriousness of the offense. Separation authorities could 
furnish an honorable discharge when a Soldier's subsequent honest and faithful service 
over a greater period served to outweigh any disqualifying entries. It was the pattern of 
behavior, and not the isolated instance, that commanders should consider as the 
governing factor.

	b.  Paragraph 3-7b (General Discharge). A general discharge was a separation 
under honorable conditions and applied to those Soldiers whose military record was 
satisfactory, but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 10 applied to Soldiers who had committed an offense or offenses for 
which the punishment under the UCMJ included a punitive (i.e., bad conduct or 
dishonorable) discharge. 

		(1)  Soldiers could voluntarily request discharge once charges had been 
preferred; commanders were responsible for ensuring such requests were personal 
decisions, made without coercion and after having access to counsel. 

		(2)  The regulation stated the Soldier should receive a reasonable amount of time 
(not less than 72 hours) to consult with counsel prior to making his/her decision. Once 
the decision was made, the Soldier was required to make his/her request in writing, 
which certified he/she had been counseled, understood his/her rights, could receive an 
under other than honorable conditions character of service, and recognized the adverse 
nature of such a character of service. In addition, the Soldier could submit statements in 
his/her own behalf for the separation authority's consideration prior to a decision on 
approval and character of service.  

4.  The Manual for Courts-Martial, then in effect, showed a punitive discharge was one 
of the available maximum punishments for violations of Article 121(Larceny of Military 
Property) and Article 132 (Frauds Against the United States).

5.  AR 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribed 
policies and procedures for enlisted promotions and reductions. Paragraph 6-15 
(Approved for Discharge from the Service Under Other than Honorable Conditions) 
stated separation authorities were required to reduce Soldiers to the lowest enlisted 
grade when they were being separated per an approved under other than honorable 
conditions discharge.

6.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military 
records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins 
its consideration of each case with the presumption of administrative regularity, which 
means the Board presumes what the Army did was correct. The Board is not an 
investigative body, and the applicant bears the burden of providing a preponderance of 
evidence to support claims of inequity and/or injustice.

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; 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 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)	 AR20220001532



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OFPROCEEDINGS


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