IN THE CASE OF: BOARD DATE: 16 March 2023 DOCKET NUMBER: AR20220006293 APPLICANT REQUESTS: Reconsideration of her request for upgrade of her bad conduct discharge (BCD) to under honorable conditions (general), and her narrative reason for separation be changed to reflect "Secretarial Authority," and reentry (RE) code "1." APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 27 April 2022 * Legal Brief, dated 27 April 2022 (26 pages) * Exhibit 1 – Personal Statement (6 pages), dated 27 April 2022 * Exhibit 2 – DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 27 August 2004 * Exhibit 3 – Army Board for Correction of Military Records (ABCMR) Decisional Memorandum, dated 5 June 2008 * Exhibit 4 – Department of Defense Memorandum, subject: Consideration of Discharge Upgrade Requests, dated 24 February 2016 * Exhibit 5 – History of Assignments * Exhibit 6 – Discharge and Reenlistment certificates * Exhibit 7 – Certificates of Completion * Exhibit 8 – Outpatient treatment note – McAlister Institute, dated 29 April 2004 * Exhibit 9 – Community service validation note – McAlister Institute, 13 January 2006 * Exhibit 10 – Resume * Exhibit 11 – Medical documents – U.S. Department of Veterans Affairs (VA) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20070014420 on 5 June 2008. 2. Counsel states, in pertinent part, the applicant’s discharge was unjust and in error. She was not given the benefit of any of the counseling or assistance that is now made available to victims of military sexual trauma (MST). She was not given any assistance to process the inhumanity she witnessed in Bosnia. In light of the Hagel Memorandum and its progeny, her application should be given liberal consideration. 3. The applicant, in effect, states she joined the military because she wanted a major change in her life. She was hesitant about joining because she was 28 years old and was older than most recruits. She expressed this concern to her recruiter, but he assured her it would all be fine, so she joined. Her recruiter befriended her and pressured her into sex. She would experience additional incidents of MST while attending basic training and assignments to Korea, Fort Hood, TX, and Fort Stewart, GA. She saw a fellow Soldier take his own life during her deployment to Bosnia. The MST she experienced throughout her time in the military caused her to struggle with her self-image. She began combining alcohol with cocaine and would black-out often. One time she was arrested in for several offenses, ultimately testing positive for cocaine. She was court-martialed and confined for seven months. After her separation, she struggled significantly with Post-Traumatic Stress Disorder (PTSD) and trauma induced by her experiences of MST. However, she took her mental health into her own hands and devoted 4 years of her life to therapy. She has been clean and sober since 31 July 2013. 4. On her DD Form 149, the applicant notes PTSD and sexual assault/harassment are related to her request, as contributing and mitigating factors in the circumstances that resulted in her separation. 5. On 17 September 1996, the applicant enlisted in the Regular Army. Upon completion of training, she was awarded military occupational specialty 63H (Track Vehicle Repairer). 6. The applicant served in Bosnia from 31 September 1998 to 21 March 1999. 7. The applicant re-enlisted in the Regular Army on 16 November 1998. She was promoted to sergeant/E-5 on 31 May 1999. 8. On 15 October 1999, the applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ), for willfully and unlawfully altering a public record, on or about 12 August 1999. Her punishment included reduction to E-4 (suspended), forfeiture of $725 pay for two months, extra duty for 30 days. 9. The applicant re-enlisted in the Regular Army on 21 November 2000. 10. The previous ABCMR case states: a. On 14 August 2001, charges were preferred under the UCMJ. Charge I was for violation of Article 80 (one specification) for attempting to steal a civilian police patrol car. Charge II was for violation of Article 109 (two specifications) for willfully and wrongfully damaging a patrol car and for willfully and wrongfully damaging an apartment door. Charge Ill was for violation of Article 112a (three specifications) for wrongful use of cocaine. Charge IV was for violation of Article 128 (one specification) for assault on a civilian police officer in the execution of his duties. b. On 17 December 2001, the applicant through her counsel entered into an agreement (stipulation of fact) with the trial counsel with regard to Charge Ill and its specifications. c. On 19 December 2001, before a Military Judge at a General Court-Martial, the applicant pled not guilty to Charges I, II, and IV and all specifications; and pled guilty to Charge Ill and all specifications. The applicant agreed to a stipulation of fact with the understanding that the government would not go forward with the remaining charges. d. The military judge accepted the applicant's plea and found her not guilty of Charge I and its specification; Charge II and its specifications; and of Charge IV and its specification. The Military Judge found her guilty of Charge Ill and its specifications. The military Judge sentenced her to reduction to pay grade E-1, confinement for 8 months, and a BCD. e. On 14 March 2002, the Staff Judge Advocate, in a written review for the convening authority, summarized the evidence and trial discussion. The Staff Judge Advocate recommended approval of the sentence. f. On 13 June 2002, the convening authority approved the sentence except for that part extending to the BCD. g. On 24 March 2003, the U.S. Army Court of Criminal Appeals reviewed the entire record, including consideration of the applicant's contention that her sentence was inappropriately severe and that she was treated unfairly, and held that the findings of guilty and the sentence as approved by the convening authority was correct in law and fact. Accordingly, it affirmed the finding of guilty and the sentence as approved. 11. General Court-Martial Order Number 321, issued by U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, on 11 September 2003, noted that the applicant's sentence had been affirmed and ordered the BCD duly executed. 12. The applicant was discharged on 27 August 2004. Her DD Form 214 confirms she was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, section IV, as a result of court-martial with separation code "JJD" and RE code 4. Her service was characterized as bad conduct. She was credited with 7 years, 4 months, and 19 days of net active service this period. Her DD Form 214 further shows she was awarded or authorized the: * North Atlantic Treaty Organization Medal * Army Achievement Medal (2nd Award) * Army Good Conduct Medal * Korea Defense Service Medal * Armed Forces Expeditionary Medal * Noncommissioned Officers Professional Development Ribbon * Army Service Ribbon * Driver and the Mechanic Badge with Driver-T (tracked vehicles) Bar 13. The applicant petitioned the ABCMR on 5 October 2007 to have her BCD upgraded to an honorable discharge. The Board voted to deny relief and determined that the overall merits of the case were insufficient as a basis for correction of the records. 14. In the processing of this case, a U.S. Army Criminal Investigation Division (CID) Report of Investigation (ROI) was obtained on 19 November 2022. The ROI noted the applicant was interviewed on 18 December 1996 by a CID agent, concerning an allegation of sexual impropriety by her U.S. Army Recruiter. The investigation disclosed on 25 April 1996, the applicant was driven to a hotel by her recruiter to spend the night prior to her physical examination. The recruiter came to the applicant’s room, fondled her breasts, and had her perform fellatio on him. 15. The applicant provides numerous documents for consideration of her request. These documents are provided in their entirety for the Board’s review within the supporting documents. They include: a. A memorandum that provides military Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) guidance and clarity on consideration of discharge upgrade requests by Veterans for PTSD; mental health conditions and/or sexual assault. b. Multiple certificates of completion from the Department of the Navy, for completing life skill courses. c. Two letters from the that show the applicant completed a 6 month drug and alcohol outpatient program and that she completed 85 hours of volunteer community service at the facility. d. A professional resume that provides a summary of her experiences, abilities, skills, and accomplishments. e. Multiple pages of VA medical records in support of her disability compensation application. 16. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code (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. 17. Published guidance to 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. 18. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting reconsideration of her request for upgrade of her bad conduct discharge (BCD) to under honorable conditions (general), and her narrative reason for separation be changed to reflect "Secretarial Authority," and reentry (RE) code "1." She contends her misconduct was related to PTSD secondary to MST. 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 into the Regular Army on 17 September 1996; 2) She served in Bosnia from 31 September 1998 to 21 March 1999; 3) On 15 October 1999, the applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ), for willfully and unlawfully altering a public record, on or about 12 August 1999; 4) On 14 August 2001, court-martial charges were preferred against her as follow: Charge I, in violation of Article 80 (one specification) for attempting to steal a civilian police patrol car. Charge II, in violation of Article 109 (two specifications) for willfully and wrongfully damaging a patrol car and for willfully and wrongfully damaging an apartment door. Charge Ill, in violation of Article 112a (three specifications) for wrongful use of cocaine. Charge IV, in violation of Article 128 (one specification) for assault on a civilian police officer in the execution of his duties; 5) On 17 December 2001, the applicant through her counsel entered into an agreement (stipulation of fact) with the trial counsel with regard to Charge Ill and its specifications; 6) On 19 December 2001, before a Military Judge at a General Court-Martial, the applicant pled not guilty to Charges I, II, and IV and all specifications; and pled guilty to Charge Ill and all specifications. The applicant agreed to a stipulation of fact with the understanding that the government would not go forward with the remaining charges; 7) The military judge accepted the applicant's plea and found her not guilty of Charge I and its specification, Charge II and its specifications, and of Charge IV and its specification. The Military Judge found her guilty of Charge Ill and its specifications; 8) The applicant was discharged on 27 August 2004 under the provisions of Army Regulation 635-200, Chapter 3, section IV, as a result of court-martial. c. The electronic military medical record, AHLTA, VA electronic Medical Record, JLV, and ROP were reviewed. A review of AHLTA was void of any BH-related treatment records for the applicant and no additional hardcopy military BH-related records were provided for review. A review of JLV showed the applicant is currently not service-connected, however, the results of her Initial PTSD DBQ dated 21 February 2023, showed the examiner diagnosed the applicant with PTSD secondary to multiple sexual traumas reportedly experienced during her military service. But for the applicant’s bad conduct discharge, she would likely have a SC rating for PTSD. d. The applicant first BH-related treatment engagement with the VA appears to have occurred at the Loma Linda CA VA on 19 July 2021, whereby she was seen in the BH same day clinic, via video-teleconference, seeking to establish BH services. She reported being homeless and working toward getting assistance through the VASH program. She also reported a history of PTSD, MST, GAD and personal concerns for which she wanted treatment. According to the applicant, she was previously receiving therapy in the form of CBT and DBT through Neighborhood Health for 3-4 years and engaged in a women’s group for approximately 8-years. She was diagnosed with Trauma/Stressor-Related Disorder Unspecified, and Reaction to Severe Trauma Unspecified, and scheduled for outpatient care. The applicant was seen for a psychiatric intake on 4 August 2021. The provider noted the applicant reporting significant anxiety and depressive symptoms associated with significant psychosocial stressors, a significant trauma history related to military service, and perseveration on the belief that she had been targeted over the past three years by multiple unknown individuals for multiple unknow reasons. Her history of MST reportedly began with her recruiter pressuring her to have sex prior to joining, sexual assault from her DS during BCT, and subsequent MSTs at all other duty stations and during deployment. The applicant was diagnosed with Trauma and Stress Related Disorder with a rule-out of PTSD, a provisional diagnosis of GAD, Alcohol Use Disorder in Sustained Remission, and a rule out of Delusional Disorder, Persecutory Type. The applicant declined psychiatric management and reported not being interested in medication. e. Records showed the applicant was seen on 17 March 2022 and 24 March 2022 for diagnostic clarification and rule-out of PTSD and Psychotic Disorder. The feedback session was conducted on 20 April 2022; however, the diagnostic determination was not clear to this writer based on information in the encounter note. The applicant was described as displaying thought contend characterized by “paranoid, persecutory delusional content, and ideas of reference” but the treatment referrals were for EMDR for trauma treatment. f. On 21 April 2022 the applicant was seen for a tele-BH appointment for a brief assessment and safety screening. The provider noted the applicant was new to him and hadn’t been seen in psychological services since 4 August 2021. He also noted the applicant was screen for enrollment into the Psychological Rehabilitation and Recovery Center (PRRC) but she declined because she did not want to be involved in a group therapy format. Additionally, he noted the applicant frequent visit with HUD VASH (note: the applicant enrolled in HUD VASH July 2021 and remained enrolled through January 2023). The applicant reported no safety concerns and indicated an interest in outpatient treatment for her BH related symptoms. g. The applicant began receiving individual BH session with biofeedback on 29 April 2022. The diagnoses of record included a history PTSD Chronic, Adult Victim of Sexual Abuse during Military Service, and Assault by Other Bodily Force. She received biofeedback through 26 July 2022 with reported good results. h. Records suggest the applicant was diagnosed with PTSD sometime in March 2022, however, this provider was unable to locate documentation whereby a provider made the actual diagnosis. Instead, this advisor found “PTSD by history” diagnosis in March 2022 as annotated in MH/VASH encounters from March 2022 to January 2023 and in biofeedback sessions beginning April 2022. Notwithstanding, as previously stated, records showed the applicant underwent a PTSD DBQ on 21 February 2023, and was diagnosed with PTSD secondary to MST related to multiple sexual traumas. i. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence in the records that the applicant had a condition or experience that partially mitigated her misconduct. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant contends her misconduct was related to PTSD and she was diagnosed with PTSD secondary to MST during an Initial PTSD DBQ conducted by a VA provider on 5 March 2023. 2. Did the condition exist or experience occur during military service? Yes. 3. Does the condition or experience actually excuse or mitigate the discharge? Partially. The applicant contends her misconduct was associate with PTSD and a recent PTSD DBQ conducted by a VA provider on 5 March 2023 showed the applicant diagnosed with PTSD secondary to multiple instances of MST beginning with her recruiter the night before her physical exam at MEPS, then her DS during BCT, and reportedly numerous others in positions of authority over the course of her career. But for her bad conduct discharge, the applicant would likely be currently rated for PTSD. As it relates to mitigation, this advisor is limiting the misconduct to the instances of cocaine use - as it was the only charge the applicant was found guilty of during court- martial proceedings, and misconduct characterized by altering a public document - as she accepted NJP under Article 15 of the UCMJ for the misconduct. There is a clear association between PTSD and substance abuse to treat related symptoms, as such misconduct characterized by cocaine use is mitigated. However, willfully and wrongfully altering a public record is not sequela of PTSD, as such the misconduct is not mitigated by the disorder. However, given her reported history of MST, Liberal Consideration guidance, and the desire to make the applicant hold subsequent MST, it is the recommendation of this advisor the Board Considers upgrade to HD/SA. If, however, the Board chooses to consider the totality of the applicant’s misconduct, it is the opinion of this advisor that the gravity of the misconduct outweighs relief offered under Liberal Consideration. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, her record of service to include deployment, the frequency and nature of her misconduct and the reason for her separation. The Board considered the applicant's PTSD and MST claim and the review and conclusions of the ARBA Medical Advisor. The Board found the evidence of post-service achievements provided by the applicant insufficient in support of a clemency determination. The Board found insufficient evidence of in-service mitigating factors and, considering the totality of her misconduct, found her PTSD and MST insufficiently mitigating in support of a clemency determination. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. ? 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20070014420 on 5 June 2008. 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 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. 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. c. Chapter 3, section IV provided that a member would be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. 4. 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. 5. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-6 provides a list of RE codes. * RE code "1" applies to Soldiers completing an initial term of active service, who are considered qualified for enlistment if all other criteria are met * RE code "2" is no longer in use but applied to Soldiers separated for the convenience of the government, when reenlistment is not contemplated, who are fully qualified for enlistment/reenlistment * RE code "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, whose disqualification is waivable – they are ineligible unless a waiver is granted * RE code "4" applies to Soldiers separated from last period of service with a non- waivable disqualification 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 separation codes to be entered on the DD Form 214. At the time, this regulation prescribed the separation code "JJD" as the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, as a result of court-martial. Additionally, the SPD/RE Eligibility Code Cross Reference Table established RE code "4" as the proper reentry code to assign to Soldiers separated under this authority and for this reason. 7. The Secretary of Defense directed the Service DRBs and Service BCM/NRs, on 3 September 2014, to carefully consider the revised post-traumatic stress disorder criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions (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. 8. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on 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. 9. 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) AR20220006293 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1