IN THE CASE OF: 
BOARD DATE: 30 August 2023 
DOCKET NUMBER: AR20230000290 


APPLICANT REQUESTS:  Upgrade of her under other than honorable conditions (UOTHC) discharge to under honorable conditions (general) or honorable. Additionally, she requests a personal appearance before the Board. 

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 

•DD Form 149 (Application for Correction of Military Record)

•Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)

•In-service training documents

•DD Form 214 (Certificate of Release or Discharge from Active Duty)

•Summary of Board proceedings

•Character reference letter

•Performance counseling (4)

•In-service medical documents

•Financial summary letter

•In-service general counseling forms (3)



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 theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states, in effect, that she joined the military to make a difference in herlife and her family lives. She wanted to make a positive contribution to the world afterher traumatic incident. She was shipped to Germany and never had a sponsor nor thesupport she had asked for with her postpartum depression, anger, and confusion. Shehas been holding all of this in since 1993. She feels hurt and humiliated with theseparation decision.

3.On her DD Form 149, the applicant notes post-traumatic stress disorder (PTSD),other mental health, and sexual/harassment as contributing and mitigating factors in thecircumstances that resulted in her separation.
4.The applicant enlisted in the Regular Army on 9 October 1992, for 4 years. Uponcompletion of training, she was awarded military occupational specialty 91R(Veterinary Food Inspection Specialist).

5.On 13 July 1993, the applicant tested positive for cocaine on a urinalysis test.

6.On 21 July 1993, she was command referred to the Community Counseling Centerfor Alcohol and Drug Abuse Prevention and Control Program screening.

7.On 28 July 1993, the applicant again tested positive for cocaine on a urinalysis test.

8.The applicant received formal counseling on the following dates/for:

•20 September 1993, for failing to report for physical training and for improper sickcall reporting procedures

•30 September 1993, for continual lateness for duty, not obeying the instructionsof her supervisor, departing her duty section without notification, and for impropersick call reporting procedures



9.On 19 October 1993, the applicant accepted non-judicial punishment underArticle 15 of the Uniform Code of Military Justice, for wrongful use of cocaine on orabout June 1993 and on or about July 1993. Her punishment included reduction to thegrade of E-1, forfeiture of $407.40 pay per month for two months, and 45 days extraduty.

10.On 10 January 1994, the applicant underwent a mental status evaluation. She waspsychiatrically cleared to participate in any administrative action deemed appropriate bythe command.

11.The applicant's commander notified the applicant on 8 February 1994, that he wasinitiating actions to separate her under the provisions of Army Regulation 635-200(Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commission of aserious offense. Her commander noted her wrongful use of cocaine.

12.The applicant consulted with legal counsel and acknowledged she had beenadvised of the basis for the contemplated separation action. Following her consultation,she requested the right to personally appear before, and to have her case consideredby a board of officers.

a.She elected to submit a statement in her own behalf; however, the availablerecord is void of a statement. She requested representation by counsel. 

b.She acknowledged she understood that as a result of issuance of a dischargeUOTHC, she may be ineligible for many or all benefits as a veteran under Federal and State laws and that she could expect to encounter substantial prejudice in civilian life. 

13.On 10 February 1994, the applicant's commander formally recommended herseparation under the provisions of Army Regulation 635-200, Chapter 14-12, for twocounts of wrongful use of cocaine. He further recommended a service characterizationof UOTHC.

14.On 8 April 1994, a board of officers convened to determine if the applicant shouldbe eliminated from service. The Board recommended that she be separated fromservice for commission of a serious offense, suspended for a period of 180 days. TheBoard further recommended issuance of an UOTHC Discharge Certificate, and that theapplicant receive counseling for drug use.

15.Consistent with the board’s findings and recommendation, the separation authorityapproved the recommended discharge on 20 May 1994. However, he did not approvethe period of suspension, the applicant’s service was to be characterized as UOTHC.

16.The applicant was discharged on 18 July 1994. Her DD Form 214 confirms she wasdischarged under the provisions of Army Regulation 635-200, paragraph 14-12c, formisconduct. Her service was characterized as UOTHC. She completed 1 Year,9 months, and 10 days of net active service this period.

17.On 3 March 2023, the ABCMR staff requested that the applicant provide medicaldocuments to support her issue of PTSD. She was advised that she could contact thedoctor that diagnosed her or her VA regional office for assistance. She did not respond.

18.In the processing of this case, a search of the Criminal Investigation Divisiondatabase was requested for a Report of Investigation and/or Military Police Report –military sexual assault/trauma pertaining to the applicant. The search revealed norecords pertaining to the applicant.

19.The applicant provides the following (provided in entirety for the Board):

a.A statement in support of her VA benefits compensation claim stating, in effect,that she was drugged at the officers’ club and sexually assaulted while at advanced individual training. Her statement details the trauma from the assault, pregnancy, and the lack of counseling. 

b.A character reference letter and performance counseling letters that collectivelyattest to the applicant's professionalism, work ethic, dedication, and moral character. 
c.In-service medical and dental documents that show the applicant filled outpaperwork that she was pregnant and had depression or excessive worry. 

20.In reaching its determination, the Board can consider the applicant's petition,arguments and assertions, and service record in accordance with the published equity,injustice, or clemency guidance.

21.MEDICAL REVIEW:

a.The Army Review Boards Agency (ARBA) Medical Advisor was asked to reviewthis 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 the Interactive Personnel Electronic Records Management System (iPERMS).  The ARBA Medical Advisor made the following findings and recommendations:    
b.The applicant is applying to the ABCMR requesting an upgrade of her 18 July1994 discharge characterized as under other than honorable conditions.  She states: 
c.“Discharge upgrade to be eligible for VA benefits due to mental health conditionsbecause of sexual assault resulting in pregnancy.  Harassment during my military service causing heart conditions, depression, anxiety, sleeplessness, mental shock, and posttraumatic stress disorder.” 
d.The Record of Proceedings details the applicant’s military service and thecircumstances of the case.  The applicant’s DD 214 for the period of service under consideration shows she entered the regular Army on 9 October 1992 and was discharged on 18 July 1994 under the separation authority provided by paragraph 14-12c of AR 635-200, Personnel Separations – Enlisted Personnel (26 May 1989): Commission of a serious offense.  It shows no periods of service in a hazardous duty pay area. 
e.On 10 February 1994, her company commander recommended she be separatedunder paragraph 14-12c of AR 635-200 for “2 counts of wrongful use of cocaine.  The applicant requested an Administrative Separation Board.  
f.On 16 May 1994, her Administrative Elimination Board found the preponderance ofthe evidence to support the charges of wrongful use of cocaine on or about 29 June 1993 and 13 July 1993.   
g.On 20 May 1994, her Commanding General directed she be discharged from theArmy: 
“After careful consideration of the board proceedings, the findings and recommendation as to discharge, but not suspension of the discharge, are approved.  I direct that PFC [Applicant], , 72d Medical Detachment, APO AE 09222, be discharged from the United States Army under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, Section III, for commission of a serious offense. 
PFC Larkin's characterization of service will read other than honorable (OTH).” 
h.Her pre-separation mental status evaluation had been completed 10 January1994.  The provider documented a normal examination and no mental health conditions.  
i.No probative medical documentation was submitted with the application.
j.JLV shows she is not registered with the Veterans Hospital Administration.

Kurta Questions: 

(1)Did the applicant have a condition or experience that may excuse or mitigate thedischarge?  Applicant claims sexual assault 

(2)Did the condition exist or experience occur during military service?  Applicantclaims the sexual assault occurred while she was in the Army. 

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

There was no probative evidence submitted, found in AHLTA or other electronic records, or in JLV (to include VA endorsement), for military sexual trauma or a behavioral health disorder of any kind. Under liberal consideration, however, the applicant’s self-assertion of MST is sufficient to establish that MST occurred. As there is an association between MST and self-medication with illicit drugs to treat painful emotional symptoms, there is a nexus between her experience of MST and her wrongful use on two occasions of cocaine. As such, it is the recommendation of the medical advisor that the applicant be upgraded to HD with a narrative reason code of SA. 


BOARD DISCUSSION: 

1.After reviewing the application, all supporting documents, and the evidence foundwithin the military record, the Board found that relief was warranted. The Board carefullyconsidered the applicant's record of service, documents submitted in support of thepetition and executed a comprehensive and standard review based on law, policy andregulation, and published Department of Defense guidance for liberal and clemencydeterminations 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 advising official finding a nexus between her experience of MST and her wrongful use on two occasions of cocaine. The Board noted the advising opine there is an association between MST and self-medication with illicit drugs to treat painful emotional symptoms. The Board agreed there is sufficient evidence of in-service mitigating factors that warrants clemency. The Board determined, based on the misconduct and the medical opine, the applicant’s case warrants clemency with an upgrade of her discharge to under honorable (general) conditions and her narrative reason changed to secretarial authority. Therefore, the Board granted relief. 

2.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 equitabledecision.  As a result, a personal appearance hearing is not necessary to serve theinterest of equity and justice in this case.


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

:X :X :X GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : 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 re-issuing the applicant a DD Form 214 for the period ending 18 July 1994 to show:a.Characterization of Service:  General, Under Honorable Conditionsb.Separation Authority:  AR 635-200c.Separation Code:  JFFd.RE Code:  No changee.Narrative Reason for Separation:  Secretarial Authority



Microsoft Office Signature Line...



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 ofmilitary records must be filed within 3 years after discovery of the alleged error orinjustice. This provision of law also allows the ABCMR to excuse an applicant's failure totimely file within the 3-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.Title 10, U.S. Code, Section 1556, provides the Secretary of the Army shall ensurethat an applicant seeking corrective action by ARBA is provided a copy of allcorrespondence and communications, including summaries of verbal communications,with any agencies or persons external to agency or board, or a member of the staff ofthe agency or Board, that directly pertains to or has material effect on the applicant'scase, except as authorized by statute. ARBA medical advisory opinions and reviews areauthored by ARBA civilian and military medical and behavioral health professionals andare therefore internal agency work product. Accordingly, ARBA does not routinelyprovide copies of ARBA Medical Office recommendations, opinions (including advisoryopinions), and reviews to Army Board for Correction of Military Records applicants(and/or their counsel) prior to adjudication.


3.Army Regulation 15-185 (ABCMR) prescribes the policies and procedures forcorrection of military records by the Secretary of the Army, acting through the ABCMR.
 
a.  Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 
 
b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 
 
4.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 
 
 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 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. It states that action will be initiated to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) applied to commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense. First time offenders below the grade of sergeant, and with less than 3 years of total military service, may be processed for separation as appropriate. 
 
5.  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 PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions 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.  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.  
 
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, 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.   
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