IN THE CASE OF: BOARD DATE: 26 July 2023 DOCKET NUMBER: AR20230000175 APPLICANT REQUESTS: Upgrade of her under other than honorable conditions (UOTHC) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Various In-service Documents * Social Media Digital Image FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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, in effect, states: a. She feels corrections should be made because she is an Honorable person. She is loyal, dedicated, and highly respected by her family, friends, and co-workers. Now that she finally has the courage to speak to her family, friends, and former military personal about the most traumatic event in her life and as she receives their love, empathy, and support, the more she realizes how important it is for her to receive an honorable discharge. She loved her country and wanted more than anything to serve and to protect. One of the most valuable honors in her life was taken from her. b. Being discharged from the Army was the most traumatic event that has happened to her. The humiliation and trauma left her scared, feeling worthless, and alone; she fell into a state of depression which took away all self-confidence. To date, she has dreams of being in the Army, dreaming she re-enlisted and was allowed to serve her country. She awakes and realizes it was a dream and the overwhelming sadness is again felt. She now requests to have the time she proudly and honorably served her country, be corrected to honorable. 3. On 25 August 1987, the applicant enlisted in the Regular Army for 4 years. Upon completion of training, she was awarded military occupational specialty 95B (Military Police). 4. Court-martial charges were preferred against the applicant on 20 June 1988 for violation of the Uniform Code of Military Justice (UCMJ). Her DD Form 458 (Charge Sheet) shows she was charged with two specifications of sodomy for the periods from on or about February 1988 to on or about March 1988, and from on or about April 1988 to on or about May 1988; and one specification of wrongfully committing an indecent act with a Soldier in the presence of another Soldier on or about 12 May 1988. 5. The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a bad conduct discharge; and the procedures and rights that were available to her. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In her request for discharge, she acknowledged her understanding that by requesting discharge, she was admitting guilt to the charge against her, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. She further acknowledged he understood that if her discharge request was approved, she could be deprived of many or all Army benefits, she could be ineligible for many or all benefits administered by the Veterans Administration, and she could be deprived of her rights and benefits as a Veteran under both Federal and State laws. b. She declined to submit a statement in her own behalf. 6. The separation authority approved the applicant's request for discharge in lieu of trial by court-martial on 6 July 1988 and directed the issuance of a DD Form 794A (UOTHC Discharge Certificate). 7. On 22 July 1988, the applicant underwent a mental status evaluation. She was psychiatrically cleared to participate in any administrative action deemed appropriate by the command. 8. The applicant was discharged on 3 August 1988. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms she was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of court-martial. She was discharged in the lowest enlisted grade and her service was characterized as UOTHC. She completed 11 months and 9 days of net active service this period. 9. The applicant provides the following (provided in entirety for the Board): a. Multiple pages of in-service documents that show her successful completion of mandatory training and recognition for her academic achievements. b. Social media digital image from an individual that apologizes for being a terrible friend and ruining careers. 10. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 11. In reaching its determination, the Board can consider the applicant’s petition, her arguments and assertions, and her service record in accordance with the published equity, injustice, or clemency guidance. 12. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of her under other than honorable conditions (UOTHC) discharge to honorable. 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 25 August 1987; 2) Court-martial charges were preferred against the applicant on 20 June 1988 for two specifications of sodomy and one specification of wrongfully committing an indecent act with a Soldier in the presence of another Soldier; 3) On 3 August 1988, the applicant was discharged, Chapter 10, for the good of the service in lieu of court-martial. Her service was characterized as UOTHC c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional medical documentation was provided. d. The applicant asserts her discharge from the Army was a traumatic event, and afterwards she experienced depression. On 22 July 1988, the applicant underwent a mental status evaluation. She was psychiatrically cleared to participate in any administrative action deemed appropriate by the command, and she was not diagnosed with a mental health disorder. A review of JLV was void of medical documentation, and the applicant receives no service-connected disability. Also, the applicant did not provide any documentation of being diagnosed of a mental health disorder e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated her misconduct. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? No, the applicant did not assert experiencing a mental health condition or militating experience while on active service. Also, there was insufficient evidence the applicant has ever been diagnosed with a mental health condition or asserted experiencing a mitigating experience. She did assert her discharge was traumatic for her, and she experienced depression after leaving the military. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition experience actually excuse or mitigate the discharge? N/A 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 concurred with the medical opinion finding insufficient evidence to support the applicant had condition or experience that mitigated her misconduct. The Board agreed the applicant’s record is absent evidence she was ever been diagnosed with a mental health condition or asserted experiencing a mitigating experience. Although, she did assert her discharge was traumatic for her, and she experienced depression after leaving the military. 2. The Board noted, the applicant provided insufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. The Board found insufficient evidence of in-service mitigating factors for the serious misconduct to weigh a clemency determination. The Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to an honorable discharge. Therefore, the Board denied relief. ? 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, U.S. Code, 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, U.S. Code, 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 10 provided that a member who had committed an offense or offenses, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Navy Records (BCM/NR), on 3 September 2014, to carefully consider the revised post-traumatic stress disorder (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. 5. 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, 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. 6. 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, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000175 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1