IN THE CASE OF: BOARD DATE: 31 January 2023 DOCKET NUMBER: AR20220006143 APPLICANT REQUESTS: * reconsideration of her previous request for an upgrade of her characterization of service from bad to conduct to under honorable conditions (general). * as a new request, a change to her narrative reason for separation from court- martial conviction to Secretarial Authority. * a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 18 February 2022 * self-authored statement, 2 February 2022 * 88 pages of military and dental records * DD Form 4 (Enlistment/Reenlistment Document), 15 October 1987 * DA Form 2-1 (Personnel Qualification Record - Part II), 16 October 1987 * DD Form 214 (Certificate of Release or Discharge from Active Duty, 15 July 1992 * Certificate of Marriage, 15 November 1998 * letter from Department of Veterans Affairs (VA), 28 May 2004 * college transcripts, 25 September 2014 * letter from National Personnel Records Center, 21 August 2018 * 5 character/supporting statements, from 23 September 2021 to 1 February 2022 * Federal Bureau of Investigation (FBI) fingerprints results, 5 October 2021 * Department of Insurance license, 28 October 2021 * Allstate state(s) appointment, 10 November 2021 * civilian medical record, 7 December 2021 * Commonwealth of license, 31 January 2022 * VA Administrative Decision, undated FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number on 16 September 1998. 2. The applicant provided argument or evidence that the Board should consider in accordance with the published equity, injustice, or clemency determination guidance. 3. The applicant states, in effect, she joined the United States Air Force delayed entry program in 1987 and subsequently was released upon joining the regular Army where she attended basic training at Fort Jackson, South Carolina and was stationed in Miesau, Germany. a. In February 1988, she began her life with her husband, with a baby on the way, in. She states she and her husband noticed alerts of the ending of the Cold War and the start of Desert Storm. During that time, she and her husband began to argue and were both very abusive towards each other which caused reckless behavior and a stressful home environment around their baby. She states she was unaware of how to handle things and at one point she pulled a knife out to hurt her husband because she was tired of fighting. Eventually her husband and child were sent to the due to threats of danger near their location. Stress from the Persian Gulf War combined with handling nuclear arms weighed heavily on her and caused her to "remain on edge over everything". b. Upon returning to the she and her husband spoke about purchasing a new vehicle. She states the bank she was working with agreed to finance the vehicle, regardless of the fact she could not provide reenlistment paperwork to the bank. The car salesman assured her "Do not worry, I will take care of it". Later during that same week, she picked up the check from the bank and gave it to the car salesman while also picking up her new car. c. Two months after purchasing her new car, the applicant was called into the office by her commanding officer regarding a statement provided by another Soldier referencing the purchase of her new vehicle. An investigation was started, and the applicant was polygraphed and forced to give handwriting samples. Her commanding officer advised her that court-martial charges would be preferred against her. d. She was later shown a document provided [to the bank] on her behalf for a re- enlistment. She explained to her leadership that she had done nothing wrong, and she told the salesman she did not have enough time in service to provide re-enlistment documents and he stated he "would take care of it". Later that month, the applicant went into and absent without leave (AWOL) status and flew back to after her Christmas leave had been revoked. e. She returned to and was confined to the barracks until her scheduled court date. She was found guilty of wrongful appropriation because of the false document provided to the bank and for being AWOL. She claims her AWOL status was a result of being scared and out her mind, which triggered her Post-Traumatic Stress Disorder (PTSD). She never received treatment for any of the complaints she made for mental health and was never given the opportunity to attend counseling, before or after she was charged. She was eventually discharged due to the result of her diagnosis of Sarcoidosis in 1996 and Enlarged Fibroids causing Critical Anemia that led to blood transfusions. f. She believes her discharge was unfair and an injustice. She is requesting clemency and a change in her characterization of service so she can be provided the veteran health care access she needs. 4. A DD Form 2246 (Applicant Medical Prescreening Form) dated 25 June 1987, shows the applicant underwent a medical examination for the purpose of enlistment into the Regular Army. The applicant did not list any treatment of illness or medical or behavioral health conditions at the time of examination. 5. The applicant enlisted in the regular Army on 15 October 1987. 6. General Court-Martial Order Number 38, dated 11 June 1991, shows: a. The applicant was convicted of the following charges and specifications: (1) Charge 1, Specification: Wrongful appropriation of a value of $18,000.00 between 28 September 1990 and October 1990. (2) Additional charge: Specification: Absence without leave from unit on or about 27 December 1990 until on or about 22 January 1991. The applicant pled and was found guilty. b. Her sentence, adjudged on 12 March 1991, consisted of a Bad-Conduct Discharge (BCD) and confinement for 1 month. c. The sentence was approved and, except of the bad conduct discharge, would be executed. 7. General Court-Martial Order Number 68, dated 29 June 1992, noted the sentence had been finally affirmed and ordered the bad conduct discharge be executed. 8. The applicant's DD Form 214 confirms she was discharged on 15 October 1992 under the provisions of Army Regulation (AR) 635-200, (Personnel Separations) chapter 3, section IV, by reason of court-martial (Other), in the rank/grade of private (PV1)/E-1, and her service was characterized as bad conduct (Separation Code JJD, Reentry Code 4). She completed 4 years, 8 months and 7 days of net active service during the covered period and had lost time from 12 March 1991 to 5 April 1991. Additionally, her DD Form 214 does not list any personal decorations or awards. 9. A letter dated 25 September 1998, shows the Army Board for Correction of Military Records denied the applicant's previous request for an upgrade of her characterization of service from bad conduct to under honorable conditions (general). 10. The applicant provides 88 pages of military medical and dental records ranging in dates from 9 February 1987 to 13 March 1991. These records do not include any documentation showing she complained of, was treated for, or diagnosed with PTSD or any other mental health condition. 11. The applicant provides 22 pages of civilian medical records ranging in dates from 7 December 2021 to 17 December 2021 to 13 March 1991. These records primarily outline her diagnosis of and treatment for Sarcoidosis, but do not include any documentation showing she complained of, was treated for, or diagnosed with PTSD or any other mental health condition. 12. The applicant provides 4 pages of correspondence from the VA: a. A letter dated 28 May 2004 shows the VA asked the applicant to provide additional information and evidence for her service-connected compensation claim for Sarcoidosis. b. Page one of a letter dated 11 August 2004 shows the VA informed the applicant that entitlement to compensation benefits is contingent upon discharge from military service under conditions other than dishonorable and the service which would qualify her for benefits was terminated by an other than honorable discharge. c. VA Administrative Decision (undated) shows the applicant's service from 15 October 1987 to 15 July 1992 was under dishonorable conditions, and she is not entitled to receive VA benefits based upon her period of service. d. The applicant did not provide any correspondence from the VA showing a claim for compensation for Post Traumatic Stress Disorder (PTSD) or other behavioral health issues. 13. The applicant provides 5-character/supporting statements: a. Character reference for the Insurance, dated 23 September 2021, Mr states he is a close friend to the applicant and has known her for 7 years. In the years he has known her, she has demonstrated exceptional skill and competence. Additionally, he states that the applicant is intelligent and would make a valuable addition to team. b. Character reference for the Insurance, dated 25 September 2021, Mr states he has known the applicant for over 30 years, and she has always been an upstanding citizen and good person. Additionally, he states he would endorse her for any career endeavor she wants to do. c. Character reference for the, dated 26 September 2021 states she has known the applicant for over 12 years and has watched her show her many talents in professional and personal capacities. The applicant is a person of high moral character and integrity and recommends her for employment in the insurance department. d. Character Letter (email) dated 27 September 2021, states she met the applicant in March 1988 while they were stationed in together. The applicant has always been a pleasant person, full of laughter and positivity, and she enjoyed serving with her. e. A letter dated 1 February 2022, the applicant's ex-husband states, in effect, he has known the applicant since her first year of high school (1984). They got married in December 1987 upon the applicant being issued orders to Europe. After completion of advanced individual training, the applicant left, and he stayed back in the states preparing to move there. (1) During the first couple of months the applicant was in she was edgy and very short with conversations, complaining of headaches and stomach problems. They were told the applicant was pregnant and he arrived a month later. After a couple weeks together in they began to argue more than they ever did. The applicant would talk about how she didn't think anyone in her unit liked her a that she felt "targeted" for some reason. Everything bothered her and she was always uneasy. Their daughter was born in December 1988, he states he spent a lot of time raising their daughter while the applicant worked. He believed the applicant didn't feel comfortable taking care of their daughter, as he noticed more instability in her and started to worry about her sanity. Eventually he was sent back to the states with their daughter due to high alerts in Miesau. (2) After the vehicle incident occurred, she was frightened and called him to tell him about what had happened. He was shocked to later find out that the applicant had notified him that she was at the airport in. He states that the applicant could not eat or sleep, was very clingy to him and their daughter, and did not want to return to to face the charges against her. (3) He believes the applicant had no intentions of doing any wrong and she would never willfully provide any false documents to get a car. The way the situation was handled seemed very shady to him. The applicant was diligent in her position in the military, and she would have never done anything to jeopardize that. (4). The applicant went in a deep depression after her discharge, feeling like she let everyone down to include herself. Eventually they were divorced after their difference made it hard to maintain a healthy marriage. He states the applicant suffered from her diagnosis of Sarcoidosis in 1996 but has continued to push forward and has helped raised their two daughters. 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. By regulation AR 635-200, a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. 16. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting a reconsideration of her previous request for an upgrade of her characterization of service from bad conduct to under honorable conditions (general). She is also requesting a change to her narrative reason for separation to Secretarial Authority. She contends she had a mental health condition that mitigated her discharge, PTSD. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted in the Regular Army on 15 October 1987; 2) On 11 June 1991, the applicant was convicted of (A) wrongful appropriation of a value of $18,000.00 and (B) being absent without leave (AWOL) from 27 December 1990-22 January 1991; 3) The applicant was discharged on 15 October 1992 with a Chapter 3, by reason of court- martial, and her service was characterized as bad conduct; 4) On 25 September 1998, the Army Board for Correction of Military Records denied the applicant's request for an upgrade of her characterization of service. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) and hardcopy of medical documentation provided by the applicant were also examined. d. The applicant asserts she experienced PTSD as a result of her court martial charges. The applicant did not have a record of behavioral health treatment while on active service. The applicant did not provide any documentation beyond self-report of PTSD, and JLV was void of any behavioral health documentation. The applicant does not receive any service-connected disability. e. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated her discharge. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends she was experiencing PTSD that contributed to her misconduct. (2) Did the condition exist, or experience occur during military service? Yes, the applicant contends her PTSD occurred while on active service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially, there is insufficient evidence beyond self-report the applicant was experiencing PTSD while on active service. PTSD can be associated with avoidant behavior such as going AWOL. However, there is no nexus between PTSD and the applicant’s misconduct of wrongful appropriation of $18,000.00 given that: 1) this type of misconduct is not part of the natural history or sequelae of PTSD; 2) PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. There is also insufficient evidence to recommend the applicant’s narrative reason for separation be changed to Secretarial Authority. However, the applicant contends her diagnose resulted in her misconduct, and per the Liberal Consideration Policy, her contention is sufficient for consideration. ? BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. 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. a. The applicant's trial by a general court-martial was warranted by the gravity of the offense charged (Wrongful appropriation of a value of $18,000.00 and AWOL from unit 27 December 1990 to 22 January 1991). Her conviction and discharge were conducted in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which she was convicted. She was given a bad conduct discharge pursuant to an approved sentence of a general court-martial. The appellate review was completed, and the affirmed sentence was ordered duly executed. All requirements of law and regulation were met with respect to the conduct of the court- martial and the appellate review process, and the rights of the applicant were fully protected. The Board determine that her service was not satisfactory, and she did not meet the standards of acceptable conduct and performance of duty for Army personnel. b. The Board also considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence beyond self- report that the applicant was experiencing PTSD while on active service. PTSD can be associated with avoidant behavior such as going AWOL. However, there is no nexus between PTSD and the applicant’s misconduct of wrongful appropriation of $18,000.00 given that this type of misconduct is not part of the natural history or sequelae of PTSD; and PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. c. The Board further considered the fact that the applicant provided multiple character reference letters attesting to her post-service accomplishments in the form of employment, which the Board determined while her service certainly did not rise to the level required for an honorable discharge, it does warrant an upgrade to general, under honorable conditions in accordance with published DoD guidance for liberal consideration of discharge upgrade requests. d. As far as the reason for separation, the applicant was discharged based on her conviction by a general court-martial. She was assigned the appropriate narrative reason for separation and the Board found no reason to change it. 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. Regarding the discharge upgrade, the Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number on 16 September 1998. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 for the period ending 15 October 1992 showing: * Character of Service: General, Under Honorable Conditions * Separation Authority: No Change * Separation Code: No Change * Reentry Code: No Change 2. Regarding the issues of Narrative Reason for Separation, 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, U.S. Code, section 1552(b), provides that 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. Army Regulation 635-200, in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 3, section II (Type of Characterization or Description) stated the following types of characterization of service or description of service are authorized: separation with characterization of service as Honorable, General (under honorable conditions), or Under Other Than Honorable Conditions, and Uncharacterized (for entry level status) are authorized. These separation types will be used in appropriate circumstances unless limited by the reason for separation. (1) Paragraph 3-7a stated an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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. (2) Paragraph 3-7b stated a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. b. Paragraph 5-3, Secretarial Authority, states the separation of Soldiers for the convenience of the Government is the prerogative of the Secretary of the Army (SA). Except as delegated by this regulation or by special DA directives, it will be. accomplished only by the SA's .authority. The separation of any soldier of the Army under this authority will be based on an SA determination that separation is in the best interests of the Army. c. Chapter 14 (Separation for Misconduct) established policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, 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. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court- martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 5. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 6. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11, states applicants do not have a right to a formal hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220006143 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1