IN THE CASE OF: BOARD DATE: 17 February 2023 DOCKET NUMBER: AR20220007155 APPLICANT REQUESTS: The applicant requests: * an upgrade of her under honorable conditions (general) discharge to an honorable discharge * a different, presumably more favorable, Separation Program Designator (SPD) code * the narrative reason for her separation be changed to an unspecified, presumably more favorable reason APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) * Enlistment documents * Separation documents * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Emergency Room discharge instructions * Department of Veterans Affairs (DVA) Rating Decision * Civilian medical record extracts 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 has suffered severe health conditions that began during her service in the Army and have progressively worsened. She was young and immature at the time and panicked. She tried to take matters and her healthcare into her own hands which was not in good judgement. She indicated on her application that post-traumatic stress disorder (PTSD) and other mental health issues/conditions are related to her request. 3. The applicant enlisted in the Regular Army on 25 May 2004, for a period of 4 years. Upon completion of initial entry training, she was assigned to a unit at Fort Hood, Texas. 4. DA Forms 4187 (Personnel Action) show the applicant's unit reported changes in her duty status as follows: * 23 November 2005 – from Present for Duty (PDY) to Absent Without Leave (AWOL) * 24 December 2005 – from AWOL to Dropped from Rolls (DFR) * 1 March 2006 – from DFR to PDY 5. The applicant underwent a pre-separation medical examination. a. A DD Form 2807-1 (Report of Medical History) shows the applicant indicated she had experienced, in part: * Dizziness or fainting spells * Frequent or severe headache * Seizures, convulsions, epilepsy, or fits * Pain or pressure in her chest * Giving birth to a child b. A DD Form 2697 (Report of Medical Assessment) shows the applicant indicated that her overall health had not changed since her previous medical assessment/physical examination. She also indicated she had not suffered any injuries or conditions or been treated for such. At the time, she did not intend to seek DVA disability. c. A DD Form 2808 (Report of Medical Examination) shows she had no significant defects or diagnoses and was determined to be qualified for service. 6. An administrative flag was initiated to suspend favorable actions for the applicant, effective 10 March 2006, because she was pending elimination. 7. A DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) shows the applicant accepted nonjudicial punishment for desertion from on or about 23 November 2005 until on or about 1 March 2006. Her sentence included forfeiture of $636.00 pay (suspended) and extra duty for 45 days. 8. On 19 January 2006, the applicant underwent a command directed mental status evaluation to determine whether she was suitable for administrative discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations). The evaluation revealed no evidence of altered thought process or any other mental health condition that would explain the behavior that resulted in the initiation of this administrative action and the applicant was psychologically cleared for any administrative action deem appropriate by command. 9. On 23 March 2006, the applicant's immediate commander notified the applicant of his intent to initiate actions to separate her under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (Serious Offense). The specific reason for this action was the applicant's absence without leave. He advised the applicant he was recommending that she receive a discharge under honorable conditions (general). 10. On the same date, the applicant consulted with counsel and was advised of the basis for the contemplated actions to separate her and its effects; of the rights available to her; and the effect of any action taken by her to waive her rights. She waived representation by consulting counsel and elected not to submit statements in her own behalf. 11. On 23 March 2006, the applicant's immediate commander formally recommended her separation prior to the expiration of her term of service under the provisions of Army Regulation 635-200, Chapter 14, by reason of commission of a serious offense. 12. On 24 March 2006, the separation authority approved the recommendation and directed the applicant be discharged with a service characterization of under honorable conditions (general). 13. Orders and the applicant's DD Form 214 show she was discharged on 30 March 2006. Her DD Form 214 shows, in: (1) block 12 (Record of Service) – She completed 1 year, 6 months and 28 days of net active service this period. (2) block 18 (Remarks) – She had not completed her first full term of service. (3) block 24 (Character of Service) - Her characterization of service was Under Honorable Conditions (General). (4) block 25 (Separation Authority) - The authority for her separation was Army Regulation 635-200, Paragraph 14-12c. (5) block 26 (Separation Code) - Her SPD code was "JKQ." (6) block 27 (Reentry Code) - Her Reentry Eligibility (RE) Code was "3." (7) block 28 (Narrative Reason for Separation) - The narrative reason for her separation was "Misconduct (Serious Offense)." (8) block 29 (Dates of Time Lost During This Period) – She had time lost from 23 November 2005 until 28 February 2006. 14. The applicant's record is void of any evidence showing she was diagnosed with PTSD or any other behavioral health condition during her period of service. 15. The applicant petitioned the ADRB for an upgrade of her discharge. On 23 March 2011, the ADRB informed the applicant that after careful review or her application, military records, and all other available evidence, it was determined that she was properly and equitably discharged. Accordingly, her request was denied. 16. The applicant provides the following documents available in entirety for the Board: a. An emergency department chart which shows she was treated in the Emergency Room of Bay Medical Center, Panama City, Florida on 11 April 2019. She was prescribed Zofran and was advised to return if needed. b. A DVA Rating Decision, dated 25 August 2021 which shows, in part, she was diagnosed with: * Service connected - Gulf War era, disability ratings for tinnitus and seizure disorder * Not service connected - PTSD, anxiety, and depression c. Documents extracted from her civilian medical records showing her active problem list, the medications she was prescribed, her symptoms, and lab results. 17. Published guidance to the Boards for Correction of Military/Navy Records (BCM/NR) 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: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an upgrade of her 30 March 2006 discharge characterized as under honorable conditions (general): She states: “I have suffered severe health conditions that began during my service in the Army and have progressively gotten worse. I was young and immature in my healthcare needs and requirements. With my mental health and physical conditions getting worse, I panicked and didn't want to be seen as malingerer so tried to take matters and my healthcare into my own hands which (looking back) was not in good judgement.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows she entered the regular Army on 25 May 2004 and was discharged on 30 March 2006 under the separation authority provided by paragraph 14-12c(2) of AR 635-200, Personnel Separations – Enlisted Personnel (6 June 2005): Commission of a serious offense. c. The request for a discharge upgrade was denied by the ADRB on 23 March 2011 (AR20100017440). Rather than repeat their findings here, the board is referred to the record of proceedings for that case. Because this denial was before the institution of liberal consideration polices, this review will concentrate on evidence of a potentially mitigating mental health condition as well as new evidence submitted with this application. d. A Charge Sheet (DA for 458) shows the applicant was absent without leave (AWOL) from 23 November 2005 thru 1 March 2006. e. The applicant underwent a pre-separation mental status evaluation after which the provider documented a normal examination and no mental health conditions. She opined the applicant had the metal capacity to understand and participate in proceedings, was mentally responsible, and met the medical retention standards of AR 40-501, Standards of Medical Fitness. f. On 23 March 2006, her company commander’s notified her of the initiation of separation action under paragraph 14-12c of AR 635-200: “The reasons for my proposed action are: You were AWOL from 23 November 2005 to 1 March 2006.” Her discharge with a “General Under honorable conditions discharge” was approved by the commander of the 4th Infantry Division (Rear) (Provisional) on 24 March 2006. Review of her records in JLV show she has been diagnosed with an “unspecified mood disorder (affective disorder)” and was a victim of military sexual trauma (MST) as seen in her 31 December 2019 encounter: “Veteran shared she has had these issues since 2006 when she left the Army after two years and three months. Veteran was in Fort Hood and describes MST by a Lieutenant and issues she cannot even talk about.” Kurta Questions: A. Did the applicant have a condition or experience that may excuse or mitigate the discharge? YES: Military Sexual Trauma B. Did the condition exist or experience occur during military service? YES C. Does the condition or experience actually excuse or mitigate the discharge? YES: As military sexual trauma is associated with the onset of avoidant behaviors, her history of military sexual trauma fully mitigates her period of absence without leave. Given the history of MST, the medical advisor recommends the applicant’s discharge be upgraded to Honorable with narrative reason change to Secretarial Authority BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not 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. Upon review of the applicant’s petition, available military records and medical review, the Board noted the medical opinion finding military sexual trauma is associated with the onset of avoidant behaviors, her history of military sexual trauma fully mitigates her period of absence without leave. Notwithstanding, the recommendation of upgrade with a narrative reason to Secretarial Authority, the Board determined there was insufficient evidence of in-service mitigation to overcome the misconduct. The Board found the applicant’s record is absent of any evidence showing she was diagnosed with PTSD or any other behavioral health condition during her period of service. 2. The applicant was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board understands many sexual assault victims do not report. However, when prepondering evidence, there are sometimes symptoms of MST displayed by victims prior to their separation. Personal MST statements provided to the VA are not always corroborated. The medical review did determine there is evidence the applicant was a victim of military sexual trauma (MST) as seen in her 31 December 2019 encounter; the Board considered this factor. However, based on the evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. Therefore, the Board denied relief and found no error related to her narrative reason and separation code. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b states 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 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if merited by the Soldier’s overall record. 4. Army Regulation 635-5-1 (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. It states that the separation code "JKQ" is an appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-12b, by reason of misconduct. Additionally, the SPD/RE Code Cross Reference Table established that RE code "3" was the proper reentry code to assign to Soldiers separated under this authority and for this reason. 5. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service BCM/NRs to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 6. 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. 7. 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) AR20220007155 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1