IN THE CASE OF: BOARD DATE: 21 September 2022 DOCKET NUMBER: AR20220003143 APPLICANT’S REQUEST: The applicant requests an upgrade of her dishonorable characterization of service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 2166-7 (Noncommissioned Officer Evaluation Report (NCOER) (five) * DA Form 1059 (Service School Academic Evaluation Report (AER)) (three) * DA Form 3340 (Request for Regular Army Reenlistment or Extension) * One page extracted from General Court-Martial Order (GCMO) Number 13 issued by Headquarters, National Training Center and Fort Irwin, Fort Irwin, CA * GCMO Number 195 issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK * DD Form 214 (Certificate of Release or Discharge from Active Duty) (two) * Character reference letters (seven) 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 her dishonorable discharge should be upgraded because while serving on active duty, she was sexually assaulted by a duty officer and experienced domestic violence from her husband which resulted in her developing Post-Traumatic Stress Disorder (PTSD). This continual abuse led to her murdering her husband and resulted in her GCM and subsequent incarceration. The State of California did not pursue the case, but the Army did. She did not receive fair treatment or defense in this case. 3. On 2 September 1981, the applicant enlisted into the Regular Army and served through a series of enlistments and extensions until she was honorably discharged in the rank/grade of sergeant (SGT)/E-5 on 10 September 1996. 4. On 11 September 1996, the applicant enlisted in the U.S. Army Reserve (USAR) and continued to serve through a series of reenlistments and extensions. On 1 January 2003, she was promoted from the rank/grade of SGT/E-5 to staff sergeant (SSG)/E-6. 5. Orders and a DD Form 214 show the applicant was released from active duty and discharged for the purpose of immediate reenlistment in the USAR with a concurrent call to active duty in the Active Guard/Reserve (AGR) on 10 November 2004. 6. GCMO Number 13 issued by Headquarters, National Training Center and Fort Irwin, Fort Irwin, CA on 1 December 2006, shows the applicant was tried on 7 August 2006 and was found guilty of: a. Violation of Article 119 (Voluntary Manslaughter) of the Uniformed Code of Military Justice (UCMJ) for willfully and unlawfully killing her husband by stabbing him in the chest with a knife, on or about 24 July 2005. b. Her sentence consisted of reduction from the rank/grade of SSG/E-6 to private (PVT)/E-1, confinement for 13 years, and a dishonorable discharge. c. On 1 December 2006, only so much of the sentence as pertains to reduction to PV1/E-1, confinement for 10 years, and a dishonorable discharge was approved and, except for that portion of the sentence pertaining to a dishonorable discharge, ordered to be executed. 7. GCMO Number 195 issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK on 19 July 2007, noted the sentence was finally affirmed and the dishonorable discharge was ordered to be executed. 8. The applicant was discharged on 7 September 2007. Her DD Form 214 shows she was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 3, as a result of court-martial. Her service was characterized as dishonorable, with Separation Program Designator (SPD) Code "JJD" and reentry eligibility (RE) Code "4." Additionally, her DD Form 214 shows she was awarded or authorized the: * Army Achievement Medal (2nd Award) * Army Good Conduct Medal (5th Award) * National Defense Service Medal (2nd Award) * Army Service Ribbon * Overseas Service Ribbon * Armed Forces Reserve Medal with Mobilization Device 9. In addition to the previously discussed evidence, the applicant provides: a. Five DA Forms 2166-7 rendered for the periods ending February 1990, February 1991, April 1994, August 1995, and May 1996 which show she received favorable comments from her raters and senior raters. b. Three DA Forms 1059 which show she achieved course standards for the: * Primary Leadership Development Course from 12 September 1985 until 11 October 1985 * Automated Logistics Management Basic NCO Course from 31 March 1994 until 3 June 1994 * Water Treatment Specialist Course from 2 November 1996 until 22 February 1997 c. Seven character reference letters wherein two members of her local police department, colleagues, and a former teacher praise her dedication to her community service, work ethic, personality, and professionalism. 10. The applicant's record is void of and she has not provided evidence showing she was diagnosed with PTSD or any other behavioral health or medical condition during her period of service. 11. 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 6 May 2022, the USACID informed the ABCMR that a search of the Army criminal file indexes revealed no Sexual Assault or Military Sexual Trauma records pertaining to the applicant. 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. 12. 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. 13. Army Regulation 635-200 provides that a Soldier would be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and that the appellate review must be completed, and the affirmed sentence ordered duly executed. 14. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 15. 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. 16. MEDICAL REVIEW: The applicant requests an upgrade of her dishonorable characterization of service. The applicant contends her dishonorable discharge should be upgraded because while serving on active duty, she was sexually assaulted by a duty officer and experienced domestic violence from her husband which resulted in her developing Post-Traumatic Stress Disorder (PTSD). This continual abuse reportedly led to her murdering her husband and resulted in her GCM and subsequent incarceration. a. 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: The applicant’s records is void of a Posttraumatic (PTSD) diagnosis during her military service, however, she was diagnosed with PTSD and Major Depressive Disorders (MDD) on 25 September 2007 while confined at Naval Consolidated Brig, Miramar, San Diego California. The treatment record contained minimal content beyond diagnoses and medication management. Subsequent her release from incarceration the applicant was seen at the Marianna VA Clinic, Florida, where she was also diagnosed with PTSD and MDD. The records indicate the diagnoses were associated with trauma stemming from domestic violence. The applicant continues to receive routine BH treatment at the VA facility. b. On 7 August 2006 the applicant was found guilty of Voluntary Manslaughter Charges in the stabbing death of her husband. Her sentence consisted of reduction in rank from E-6 to E-1, 13 years confinement, and a dishonorable discharge. On 1 December 2006 the sentence was altered to reflect reduction in rank to E-1, 10-year confinement and a dishonorable discharge. The sentence was affirmed on 19 July 2007 and the applicant was dishonorably discharged 7 September 2007. c. Prior to the Court Marshall the applicant served honorably in the Regular Army from 2 September 1981 to 10 September 1996, before transferring to the U.S Army Reserve (USAR) on 11 September 1996 and served as a reservist before being called to active duty in the Active Guard/Reserve (AGR) on 10 November 2004. d. The applicant contends that during her time on active duty she was sexually assaulted by a duty officer and experienced domestic violence from her husband which resulted in the development of PTSD. She further contends the continued abuse led to her murdering her husband and the resulted GCM and subsequent incarceration. A memorandum from the U.S. Army Criminal Investigation Division dated 6 May 2022 states “A search of the Army criminal file indexes utilizing the information you provided revealed no Sexual Assault or Military Sexual Trauma records pertaining to. e. The applicant was released from custody in 2010 after service 5 of the 10 years sentence. Since her release she has pursued higher education, worked in the ministry, and as a civic partner in her community. She presented 7-character references from various organizations, all speaking to her qualities. f. Kurta Questions (1) Does the applicant have a condition or experience that may excuse or mitigate the discharge? (a) Yes, the applicant was diagnosed with PTSD 25 September 2007 while confined. (2) Did the condition or experience occur during military service? (a) Yes, the applicant contends she was sexually assaulted by a duty officer and experienced domestic violence while on active duty. (3) Does the condition or experience actually excuse or mitigate the discharge? (a) Although there is a nexus between anger/aggression and PTSD, PTSD does not affect an individual’s ability to understand right and wrong and choose to do right. The applicant was initially charged with premeditated murder and pled to voluntary manslaughter. Bringing a charge of premeditated murder suggests the evidence showed planning and forethought on behalf of the applicant, suggesting she willfully chose to commit a crime. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was 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. One potential outcome was to deny based on insufficient evidence of in-service mitigating factors to overcome the misconduct. The Board noted the applicant’s post-service achievements and letters of support to weigh as a clemency determination. However, upon review of the applicant’s petition, available military records and the medical review, the Board concurred with the advising official finding there is a nexus between anger/aggression and PTSD, PTSD does not affect an individual’s ability to understand right and wrong and choose to do right. The applicant was initially charged with premeditated murder and pled to voluntary manslaughter. Bringing a charge of premeditated murder suggests the evidence showed planning and forethought on behalf of the applicant, suggesting she willfully chose to commit a crime. 2. However, the Board found there were administrative omissions which did not reflect her service and her honorable periods of service. The Board determined her DD Form 214 should be corrected to show 15 years 0months and 9 days and prior inactive service should be 5 years 8 months and 28 days with her foreign service as 6yrs 6 months and 5 days. The Board noted the applicant is entitled to a 20-year letter for her time with eligibility to retire at the age of 60. Based on this, the Board granted partial relief to correct her DD Form 214, showing her correct periods of honorable service and her eligibility of her notification of eligibility (NOE) 20-year letter with eligibility to retire at age 60. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X : : 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 amended to show her DD Form 214 for the period ending 7 September 2007 in: item 12 (Record of Service): * 12c (Net Active Service this Period) 15 years 0 Months 9 days * 12 e (Total Prior Inactive Service) 5 years 8 months 28 days * 12f (Foreign Service) 6 years 6 months 5 days Eligibility of Notification of Eligibility (NOE) 20 year letter with eligibility to retire at age 60 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 upgrade of the applicant’s dishonorable characterization of service. 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. Title 10, USC, 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. Title 10, USC, section 1552(b), provides, with respect to courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 4. Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Court-martial convictions stand as adjudged or modified by appeal through the judicial process, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 5. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge was separation with honor. 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. 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 subsequent honest and faithful service over a greater period outweighed disqualifying entries in the Soldier's military record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. A general discharge was a separation from the Army under honorable conditions. When authorized, separation authorities could issue a general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial in the following circumstances. (1) An under-other-than-honorable-conditions discharge will be directed only by a commander exercising general court-martial authority, a general officer in command who has a judge advocate or legal advisor available to his/her command, higher authority, or the commander exercising special court-martial convening authority over the Soldier who submitted a request for discharge in lieu of court-martial (see chapter 10) when delegated authority to approve such requests. (2) When the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army. Examples of factors that may be considered include the following: * Use of force or violence to produce bodily injury or death * Abuse of a position of trust * Disregard by a superior of customary superior-subordinate relationships * Acts or omissions that endanger the security of the United States or the health and welfare of other Soldiers of the Army * Deliberate acts or omissions that seriously endanger the health and safety of other persons d. A bad conduct discharge will be given to a Soldier pursuant only to an approved sentence of a general or special court-martial. The appellate review had to have been completed and the affirmed sentence then ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. e. A dishonorable discharge will be given to a Soldier pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. 6. 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. 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) AR20220003143 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1