IN THE CASE OF: 

		BOARD DATE:  9 September 2022

		DOCKET NUMBER: AR20220002484


APPLICANT REQUESTS:  Her under honorable conditions (general) discharge be 
upgraded to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: 

DD Form 293 (Application for the Review of Discharge), dated 26 October 2021

FACTS:

1.  The applicant did not file within the three-year time frame provided in Title 10, U.S. 
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, in effect, the characterization of her service should be 
upgraded due to her being a victim of statutory rape, experiencing excessive mental 
anguish, being subjected to excessive punishment, and suffering from a broken heart 
for not being able to continue serving her country.

3.  The applicant enlisted in the Regular Army on 5 April 2001, for a period of 4 years. 
Upon completion of initial entry training she was assigned to a unit at Fort Gordon, 
Georgia.

4.  DA Forms 4856 (General Counseling Form) show the applicant was counseled on 
eight occasions from 31 October 2001 through 16 January 2002. During counseling for 
disciplinary infractions, she was advised that continued conduct of this nature could 
result in punishment under the provisions of the Uniform Code of Military Justice 
(UCMJ) or the initiation of actions to administratively separate her from the Army under 
the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted 
Personnel) and the potential impact of such actions. She was counseled regarding:

*	initial explanation of her duties, responsibilities and expectations
*	failure to report at the time prescribed to her place of duty on numerous 
occasions
*	failure to be in the proper uniform
*	failure to maintain her room in a clean and orderly manner
*	failure to maintain her uniform to standard
*	lying to a noncommissioned officer (NCO)

5.  On 28 January 2002, she accepted nonjudicial punishment (NJP) under the 
provisions of Article 15, of the UCMJ. Her punishment consisted of 14 days of extra duty 
and 14 days of restriction. Her offenses included violation of:

*	Article 92, UCMJ for on or about 16 January 2002, having knowledge of a lawful 
order issued by an NCO, failing to obey the same
*	Article 86, UCMJ for on or about 16 January 2002, without proper authority, 
failing to go at the time prescribed to her appointed place of duty

6.  DA Forms 4856 show the applicant was counseled on three occasions from 
28 January to 22 February 2002. During counseling for disciplinary infractions, she was 
advised that continued conduct of this nature could result in punishment under the 
provisions of the UCMJ or the initiation of actions to administratively separate her from 
the Army under the provisions of Army Regulation 635-200 and the potential impact of 
such actions. She was counseled regarding:

*	details of the NJP she received as a result of her summarized Article 15
*	failure to report at the time prescribed to her place of duty on numerous 
occasions
*	lack of respect
*	loss of motivation
*	uniform wear and appearance
*	accountability of her sensitive items
*	failure to be alert at work
*	pending UCMJ action for drug abuse
*	command referral to the Army Substance Abuse Program (ASAP)
*	failure of the Army Physical Fitness Test (APFT)

7.  On 7 March 2002, she accepted NJP under the provisions of Article 15, of the UCMJ 
for violating Article 112a, by between on or about 19 December 2001 and 18 January 
2002, wrongfully using d-Methamphetamine, a controlled substance. Her punishment 
consisted of: reduction from the rank/grade of private (PV2)/E-2 to private (PV1)/E-1; 
forfeiture of $200.00 pay per month for two months; 45 days of extra duty; and 45 days 
of restriction. 

8.  The applicant was counseled by her First Sergeant on 13 May 2002 regarding her 
failure to maintain the regulatory standards of the drug, alcohol rehabilitation program. 
She was advised that failure to rehabilitate was grounds for administrative separation 
from the Army and that action had been initiated for her to be separated under the 
provisions of Army Regulation 635-200, Chapter 9. The First Sergeant further advised 
the applicant that continued conduct of this nature could result in punishment under the 
provisions of the UCMJ or the initiation of actions to administratively separate her from 
the Army. An administrative flag to suspend favorable personnel actions was imposed 
effective 13 May 2002. 

9.  A memorandum, subject: Synopsis of ASAP Evaluation, 22 May 2002, shows the 
applicant was evaluated by ASAP on 5 February 2002 as a command referral 
secondary to testing positive for methamphetamine on a company urine drug screening.

     a.  During the evaluation, the applicant reported first using amphetamine (crystal 
meth) from age 13 until the present on a weekly basis. She also stated her use of 
cocaine and marijuana had been on an experimental basis; she reported using both 
drugs two to three times in her life. She stated she used the drug ecstasy from 
November 2001 to January 2002 on a weekly basis. Her alcohol history consisted of 
drinking 12-15 beers per setting and that she drank almost every weekend. She 
admitted to a history of fights, blackouts, personal injuries, and problems in her personal 
life and workplace secondary to her alcohol use.

     b.  During her enrollment in ASAP, she failed to comply with the terms of her 
treatment plan and refused to actively participate in her recovery in a positive manner. 
She had repeated relapses on alcohol and other illegal drugs. Her judgement and 
reliability were impaired and unstable at the time.

     c.  Due to her resistance to treatment, her command declared her to be a 
rehabilitation failure and the ASAP staff concurred. Further prognosis for sobriety 
appeared unfavorable and it was recommended that she attend follow-up at a Veteran 
hospital upon discharge from active duty.

10.  The applicant's immediate commander notified the applicant on 14 June 2002 that 
she was being recommended for discharge under the provisions of Army Regulation  
635-200, Chapter 9, based on her failure to rehabilitate her alcohol and drug problem.  
The applicant acknowledged receipt of this notification on 14 June 2002.

11.  The applicant consulted with counsel on 14 June 2002 and was advised of the 
basis for the contemplated actions to separate her and of the rights available to her.  
She further acknowledged her understanding and elected to submit a statement in her 
own behalf.

12.  The applicant's commander formally recommended the applicant's separation from 
service on 14 June 2002, under the provisions of Army Regulation 635-200, Chapter 9. 
As the specific reasons, her commander cited the applicant's positive urinalysis test 
result and her failure to rehabilitate her alcohol and drug problem.

13.  On 18 June 2002, the applicant rendered a letter addressed to the separation 
authority, which is available in its entirety for the Board to consider. She apologized to 
everyone for her behavior during the past year and explained how bad her childhood 
had been with a mother who was physically and verbally abusive. She joined the Army 
at the age of 17 for structure, discipline, and adventure. She was naïve and easily 
influenced so she made some foolish decisions. The Army was her foundation, and she 
wanted another chance to prove herself because she knew what she needed to do and 
was willing to do so. Using drugs was the worst mistake of her life.

14.  The separation authority approved the recommended discharge on 25 June 2002 
and directed the applicant's service be characterized as under honorable conditions 
(general).

15.  Accordingly, the applicant was discharged on 1 July 2002, under the provisions of 
Army Regulation 635-200, Chapter 9, by reason of drug rehabilitation failure.  Her 
DD Form 214 confirms her service was characterized as under honorable conditions. 
She was credited with completion of 1 year, 2 months, and 27 days of net active service 
this period.

16.  The applicant’s record is void of and she has not provided any evidence in support 
of her claims that she was a victim of statutory rape, experienced excessive mental 
anguish, or was subjected to excessive punishment.

17.  The ABCMR asked the U.S. Army Criminal Investigation Division (USACID) to 
query their database for any information pertaining to the applicant. In response to this 
request, on 13 June 2022, the USACID provided a Report of Investigation showing the 
applicant was charged with violation of Article 112a, of the UCMJ for wrongful use of 
marijuana on 24 May 2001 and had received NJP under the provisions of Article 15, of 
the UCMJ as a result.

18.  On 13 June 2022, the ABCMR provided the applicant a copy of the USACID 
correspondence and placed processing of her case on hold for 15 days to allow her an 
opportunity to submit comments on the information provided by the USACID. To date, 
the applicant has not provided a response.

19.  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.

20.  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.  

21.  MEDICAL REVIEW: 

The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting 
documents and the applicant’s medical records in the Armed Forces Health Longitudinal 
Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following 
findings and recommendations: Documentation is void of a MST, PTSD, or any 
behavioral health diagnosis. Accordingly, records are insufficient to make a 
determination at this time. However, if the Board accepts the applicant’s assertion of 
MST, trauma would mitigate the basis for separation allowing for a characterization 
upgrade and narrative reason for separation of Secretarial Authority. 

    a.  The applicant was discharged on 01 July 2002 under AR 635-200 Chapter 9, Drug 
Rehabilitation Failure, with a General characterization. The basis for separation was a 
positive UA after ASAP enrollment and noncompliance with the ASAP treatment. The 
applicant is requesting an Honorable characterization asserting the misconduct related 
to being a victim of statutory rape, experiencing mental anguish, being subjected to 
excessive punishment, and suffering from a broken heart for not being able to continue 
serving her country.

    b.  Due to the period of service, active-duty electronic medical records were void. 
Hard copy medical records include a May 2002 ASAP Discharge Memorandum noting 
the applicant was Command referred for a positive UA for Methamphetamines with 
initial evaluation in February. The applicant reported weekly use of meth from the age of 
13 through the present with experimental use of other substances. The applicant noted 
weekly use of ecstasy from November 2001 to January 2002. Additionally, the applicant 
was drinking excessively on the weekend. The applicant was diagnosed with Alcohol 
Dependence and Methamphetamine Abuse with enrollment.  During enrollment, the 
applicant failed to comply with the treatment plan, refusing to participate in recovery. 
The provider noted the applicant had a negative judgement about the incident and 
abstinence with repeated relapses. The provider noted Command had deemed the 
applicant a rehabilitation failure with ASAP concurrence.

    c.  In support of retention, the applicant submitted a letter noting childhood abuse and 
related problems growing up. The applicant indicated she enlisted to have better 
opportunities and prove people wrong. The applicant asserted she got caught up in the 
party scene and lost focus, but wanted to be retained as she would do better.

    d.  The applicant had one CID case, related to the use of drugs.

    e.  The applicant is not service connected. In October 2021, the applicant requested 
assistance from the Veteran’s Outreach Program (VJO) in obtaining an MST/PTSD 
evaluation. The applicant had been incarcerated since 06 October 2021 for felonies in 
two districts with a $50K bond. The applicant asserted an E6, SGT engaged in rape, 
statutory rape, fraternization, adultery, and contributing to the delinquency of a minor. Of 
note, personnel records were reviewed to determine if the asserted perpetrator was 
involved in disciplinary action; the asserted perpetrator was not involved. This does not 
equate to not having contact with the asserted perpetrator or determine whether a MST 
occurred, merely a review to clarify if the individual was involved in the disciplinary 
action heightening concerns for undue influence and control. The applicant stated she 
was threatened with a court martial if she reported it and testified. The VJO worker 
provided the applicant with VA contacts for proceeding with an evaluation/claims 
request. In a second contact, the applicant stated no one was helping her and she 
needed assistance. In support of urgency, the applicant stated she was pulling out and 
shaving her hair off, had Bipolar Disorder, and suicidal with thoughts of “slicing myself.” 
The VJO worker directed her to the jail treatment center again providing her with the 
information for filing a claim. In December, the applicant requested assistance getting 
assigned to Veterans’ Treatment Court (VTC) and a VA Lawyer for bond reduction. The 
VJO worker noted the applicant was being housed in the jail mental health ward. The 
applicant was provided with claims information and informed the VA does not provide 
legal representation. In January 2022, the applicant again asked for legal assistance 
and was reminded the VA does not provide legal representation. In July, the applicant 
contacted VJO requesting assistance in filing her claim. The VJO worker reached out to 
the VA claims office letting them know of her concerns. A follow up noted ongoing 
grievance with her lawyer and needing assistance getting the individual fired and filing 
her VA claim. The VJO worker noted legal grievances had to go through the Public 
Defenders’ office and the VA could not provide legal services or advice. The VJO 
worker noted he’d reach out the claims office again to let them know about her 
concerns. In August, the applicant asked for someone to come pick up her claim 
application as she had no route to submit it.

    f.  Kurta Questions

(1)	Does the applicant have a condition or experience that may excuse or 
mitigate the discharge?	

(a)	UNKNOWN. Documentation is void of an MST or behavioral health 
diagnosis. Medical records were not submitted by the applicant. However, 
the applicant asserted an MST in her application and MST, PTSD, and 
Bipolar Disorder in her VA contacts.

(2)	Did the condition exist or experience occur during military service?

(a)	UNKNOWN. Documentation is void of an MST or behavioral health 
diagnosis. Medical records were not submitted by the applicant. However, 
the applicant asserted an MST in her application and MST, PTSD, and 
Bipolar Disorder in her VA contacts.

(3)	Does the condition or experience actually excuse or mitigate the discharge?
(a)	UNKNOWN. While the applicant asserts an MST, records are insufficient 
to make a determination. However, if the Board accepts the applicant’s 
assertion of MST, trauma would mitigate the basis for separation allowing 
for a characterization upgrade and narrative reason for separation of 
Secretarial Authority.

(4)	Does the condition or experience outweigh the discharge?	

(a)	If the Board accepts the applicant’s assertion of a MST, the basis for 
separation would be mitigated allowing for a characterization upgrade and 
narrative reason for separation of Secretarial Authority.

BOARD DISCUSSION:

The Board carefully considered the applicants request, supporting documents, evidence 
in the records, a medical review and published DoD guidance for liberal consideration of 
discharge upgrade requests.  The Board considered the applicant's statement, her 
record of service, the frequency and nature of her misconduct, and the reason for her 
separation.  The Board considered the medical records and the review and conclusions 
of the reviewing official.  The Board concurred with the medical reviewer finding 
insufficient evidence of in-service mitigating factors to overcome the misconduct.  The 
applicant provided no evidence of post-service achievements or letters of reference in 
support of a clemency determination.  Based on a preponderance of evidence, the 
Board determined that the character of service the applicant received upon separation 
was not in error or unjust.

After reviewing the application and all supporting documents, the Board found that relief 
was not warranted.

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, 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.  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.  
Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that 
the ABCMR begins its consideration of each case with the presumption of 
administrative regularity, which is that what the Army did was correct. The ABCMR is 
not an investigative body and decides cases based on the evidence that is presented in 
the military records provided and the independent evidence submitted with the 
application. 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.  Chapter 9 contained the authority and outlined the procedures for discharging 
Soldiers because of alcohol or other drug abuse. A member who had been referred to 
the ADAPCP for alcohol/drug abuse could be separated because of inability or refusal 
to participate in, cooperate in, or successfully complete such a program if there was a 
lack of potential for continued Army service and rehabilitation efforts were no longer 
practical. Nothing in this chapter prevented separation of a Soldier who had been 
referred to such a program under any other provisions of this regulation. Initiation of 
separation proceedings was required for Soldiers designated as alcohol/drug 
rehabilitation failures. The service of Soldiers discharged under this chapter would be 
characterized as honorable or under honorable conditions, unless the Soldier was in an 
entry-level status.

4.  On 3?September 2014, the Secretary of Defense directed the Service Discharge 
Review Boards (DRBs) and Service 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.

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 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.

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, 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)	 AR20220002484


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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