IN THE CASE OF:  

BOARD DATE:  14 October 2022

DOCKET NUMBER:  AR20220004332


APPLICANT’S REQUEST:  The applicant requests an upgrade of her under other than 
honorable conditions (UOTHC) characterization of service for the period of 
28 September 1997 until 20 July 1998.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty) for the 
period ending 20 July 1998
*	Department of Veterans Affairs (DVA) Review Post-Traumatic Stress Disorder 
(PTSD) Questionnaire
*	DVA Summary of Benefits letter

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 she is asking for liberal consideration to upgrade her UOTHC 
discharge because it was the direct result of her being sexually assaulted and raped by 
a Drill Sergeant while she was attending training at Fort Leonard Wood, MO, in 1998. 
Her rape was immediately reported to military police, her chain of command, the 
Inspector General, and medical psychiatrist/physician. She was reprimanded for 
reporting the rape, removed from training, forced to attend hypnosis therapy, 
psychological and medical evaluations/stigmas, put on suicide watch, demoted to the 
rank/grade of Private (PV1)/E-1, and forced to continue direct contact with the rapist. 
She was in constant fear for her life while in his presence. She still blames herself for 
reclassifying, letting her guard down, and trusting she was safe. She still has 
nightmares and lives in constant fear.

3.  The applicant's service records show:
     a.  On 3 September 1992, the applicant enlisted into the Regular Army for a period of 
3 years and continued to serve until she was released from active duty and transferred 
to the U.S. Army Reserve (USAR) Control Group on 5 June 1995. She was issued a 
DD Form 214 for this period that shows her service was characterized as honorable.

     b.  She was ordered to active duty in the Active Guard/Reserve (AGR) with three 
temporary duty training courses prior to reporting to her permanent party duty station on 
2 April 1998:

*	AGR Entrance Training (AGRET) Course at Fort McCoy, WI, from 
28 September 1997 until 10 October 1997
*	Company Trainer's Course at Fort McCoy from 11 October 1997 until 
20 October 1997
*	Technical Engineer Specialist Course at Fort Leonard Wood from 31 October 
1997 until 31 March 1998

     c.  Her duty status was reported as follows effective on the dates shown:

*	6 January 1998 – from Present for Duty (PDY) to Absent Without Leave 
(AWOL)
*	5 February 1998 – from AWOL to Dropped from Rolls (DFR)
*	14 April 1998 – from DFR to Returned to Military Control (RMC) and from 
RMC to PDY following her surrender to military authorities

     d.  A DD Form 458 (Charge Sheet) shows the applicant was charged with violation of 
Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL from her 
organization, from on or about 6 January 1998 through 14 April 1998.

     e.  On 23 April 1998, after consulting with counsel, the applicant voluntarily 
requested discharge in-lieu of trial by court-martial, under the provisions of Army 
Regulation 635-200, Chapter 10 (Discharge in Lieu of Trial by Court-Martial). In her 
request, she verified no one had subjected her to coercion and that counsel had 
advised her of the implications of her request. She further acknowledged she was guilty 
of the charge, she elected not to submit a statement in her own behalf or to have a 
physical evaluation prior to separation. 

     f.  Her immediate commander recommended approval with the issuance of a 
discharge UOTHC and forwarded the request to the separation authority for 
consideration on 9 June 1998.

     g.  On 17 June 1998, the separation authority approved the applicant's request and 
directed her reduction to the rank of PV1, with her service characterized as UOTHC.

     h.  Orders show the applicant was reduced from the rank/grade of specialist/E-4 to 
PV1 effective 13 September 2012.

     i.  Her DD Form 214 shows she was discharged on 20 July 1998. She was credited 
with completion of 6 months and 15 days of net active service this period. Her 
DD Form 214 shows in:

          (1)  block 24 (Character of Service) - Her characterization of service was UOTHC.

          (2)  block 25 (Separation Authority) - The authority for her separation was Army 
Regulation 635-200, Chapter 10.

          (3)  block 26 (Separation Code) - Her Separation Program Designator Code was 
"KFS."

          (4)  block 27 (Reentry Code) - Her Reentry Eligibility (RE) Code was "3."

          (5)  block 28 (Narrative Reason for Separation) - The narrative reason for her 
separation was "In Lieu of Trial by Court-Martial."

          (6)  block 29 (Dates of Time Lost During This Period) - She lost time due to being 
AWOL from 6 January 1998 until 13 April 1998 (3 months, and 8 days).

     j.  On 23 July 2002, the applicant underwent a pre-enlistment medical examination 
which revealed no abnormalities, defects, or diagnoses and she was determined to be 
qualified for service. She enlisted in the USAR on 23 July 2002 for a period of 1 year. 
Her record is void of any further documentation for this period of service.

     k.  Her record is void of any evidence showing she was a victim of sexual assault or 
diagnosed with any type of mental or medical condition during her period of service.

4.  The applicant provides the following evidence in support of her petition. Each of 
these documents are available in their entirety for the Board's consideration.

     a.  A DVA Review PTSD Questionnaire which shows the applicant was examined for 
disability evaluation on 18 August 2020 by a mental health professional. This form 
shows, in part, she was previously diagnosed with PTSD which resulted in her 
experiencing occupational and social impairment with reduced reliability and 
productivity. 

     b.  A DVA Summary of Benefits rendered on 12 July 2021 which shows, in part, the 
DVA provides the applicant benefits based upon award of a disability rating of 90 
percent based upon service-connected disabilities. The last change to her award was 
1 December 2020.

5.  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.

6.  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.  

7.  MEDICAL REVIEW: 

The applicant is applying to the ABCMR requesting an upgrade of her under other than 
honorable conditions (UOTHC) characterization of service for the period 28 September 
1997 to 20 July 1998.  The applicant contends her misconduct was related to MST. 
    a. 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) On 2 April 
1998 the applicant was ordered to Active Guard/Reserve (AGR) with 3 temporary duty 
trainings to be completed; 2) During the third training the applicant went AWOL; 3) She 
was discharged on 20 July 1998 under provisions of AR 635-200, Chapter 10, in lieu of 
trial by court-martial.     
    b.  Military medical records documentation reviewed include; 1) DD Form 2808 
(Report of Medical Examination) dated 23 July 2022, showing the applicant had no 
physical abnormalities that would prevent her from serving.  Once cleared she enlisted 
in the USAR for 1 year. No Report of Medical Examination associated with her AGR 
discharge was available for review.  A review of JLV shows the applicant is 90 percent 
service-connected with a 70 percent service-connection for PTSD associated with a 
MST that reportedly occurred during training at Fort Leonard Wood MO.  According to 
the applicant she was raped by a DS and subsequently went AWOL.  She contends 
“her rape was immediately reported to military police, her chain of command, the 
Inspector General, and medical psychiatrist/physician”. She further contends “she was 
reprimanded for reporting the rape, removed from training, forced to attend hypnosis 
therapy, psychological and medical evaluations/stigmas, put on suicide watch, demoted 
to the rank/grade of Private (PV1)/E-1, and forced to continue direct contact with the 
rapist”. She reportedly went AWOL because she feared for her life, in his presence.  
There is no evidence in the records supporting these claims.

    c.  The applicant began receiving BH treatment at the Central Texas (CTX) VA on 29 
October, after the applicant reportedly experienced an assault at work that triggered the 
traumatic memory.  She was diagnosed with PTSD related to MST.  A 15 September 
2016 C&P examination found her PTSD to likely be service-connected, noting that 
though no records existed directly supporting her claim, she had a previous exemplary 
history on active duty and that the article 15 and AWOL during AGR training appear to 
be markers of a stressful event. On 15 February 2017 she was diagnosed with PTSD, 
chronic and MDD associated with MST.  The applicant continues to receive treatment at 
the CTX VA.  Here current effective date for service-connection for PTSD is 29 January 
2020. 

    d.  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’s misconduct is 
mitigated by her contended experiences of MST. The applicant asserts experiencing 
MST during training and though there is no specific documentation supporting her 
assertion, her assertion alone is sufficient for consideration. 
    e.  Kurta Questions:
(1)	Does any evidence state that the applicant had a condition or experience that 
may excuse or mitigate a discharge? 

(a)	Yes, the applicant contends she was raped by a DS during training. 

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

(a)	Yes.  The experience reportedly occurred during AGR training.

(3)	Does the condition or experience actually excuse or mitigate the discharge? 

(a)	Yes.  In accordance with the Liberal Consideration guidance, the applicant's 
assertion of an MST experience mitigates the misconduct, as the decision to 
go AWOL was reportedly based in fear for her safety, which is sequela of 
trauma-related experiences.  

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief 
was warranted. The Board carefully considered the applicant’s request, supporting 
documents, evidence in the records, and published DoD guidance for liberal 
consideration of discharge upgrade requests. The Board considered the applicant's 
statement, the applicant's record of service, the frequency and nature of the applicant's 
misconduct and the reason for separation. The applicant was charged with commission 
of an offense punishable under the UCMJ with a punitive discharge. After being 
charged, the applicant consulted with counsel and requested discharge under the 
provisions of AR 635-200, Chapter 10.  Such discharges are voluntary requests for 
discharge in lieu of trial by court-martial and carry an under other than honorable 
conditions characterization of service. 

	a.  The Board considered the medical records, any VA documents provided by the 
applicant and the review and conclusions of the advising official. A majority of the Board 
concurred with the medical advisory opinion finding sufficient evidence of in-service 
mitigating factors to overcome the misconduct. Based on a preponderance of evidence, 
a majority of the Board determined that a general discharge is appropriate under 
published DoD guidance for liberal consideration of discharge upgrade requests. 

	b.  The member in the minority noted that the applicant did not submit any 
statements when she requested a voluntary discharge in lieu of trial by a court-martial. 
Although the medical reviewer determined there is a mitigating factor for 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.


BOARD VOTE:

Mbr 1			Mbr 2		Mbr 3

:				AM		SM:	GRANT FULL RELIEF

:				:				:	GRANT PARTIAL RELIEF

:				:				:	GRANT FORMAL HEARING

KS:				:			:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a 
recommendation for relief. As a result, the Board recommends that all Department of 
the Army records of the individual concerned be corrected by reissuing him a DD Form 
214 for the period ending 20 July 1998 showing her character of service as Under 
Honorable Conditions, General.

*	Separation Authority: No Change
*	Separation Code: No Change
*	Reentry Code: No Change
*	Narrative Reason for Separation: No Change

												  
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 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.  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.

     f.  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. 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. 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, U.S. 1984, Appendix 12 (Maximum Punishment 
Chart) showed the punishment for violation of Article 86 (AWOL for 30 or more days) 
included a bad conduct discharge; when the AWOL period was terminated by an 
apprehension, a dishonorable discharge was authorized.

5.  Army Regulation 635-200, in effect at the time, stated when a Soldier was to be 
discharged under other than honorable conditions, the separation authority was 
required to direct the immediate reduction of those Soldiers to the lowest enlisted grade 
per guidance in Army Regulation 600-8-19 (Enlisted Promotions and Reductions).

6.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides 
the specific authorities (regulatory or directive), reasons for separating Soldiers from 
active duty, and the SPD codes to be entered on the DD Form 214. Soldiers separated 
under the provisions of AR 635-200, Chapter 10 receive narrative reason "In Lieu of 
Trial by Court Martial" and an SPD Code of "KFS."
7.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at 
the time, prescribed the separation documents that must be prepared for Soldiers at the 
time of retirement, discharge, or release from active duty service or control of the Active 
Army. It established standardized policy for preparing and distributing the DD Form 214. 
In pertinent part, it states the DD Form 214 is a synopsis of the Soldier's most recent 
period of continuous active duty. It provides a brief, clear-cut record of active Army 
service at the time or release from active duty retirement or discharge. The specific 
instructions for the following stated:

*	Block 24 - characterization or description of service is determined by directives 
authorizing separation
*	Block 25 - obtain correct entry from regulatory or directives authorizing the 
separation
*	Block 26 - enter the correct SPD representing the reason for separation (see 
Army Regulation 635-5-1)
*	Block 27 - enter reentry eligibility code (see Army Regulation 601-210 (Personnel 
Procurement Qualifications and Procedures for Processing Applicants for 
Enlistment and Reenlistment in the Regular Army))
*	Block 28 - enter the reason for separation as shown in Army Regulation 635-5-1 
based on the regulatory or other authority

8.  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.

9.  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.

10.  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)	 AR20220004332


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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