IN THE CASE OF: BOARD DATE: 2 August 2023 DOCKET NUMBER: AR20230001160 APPLICANT REQUESTS: an upgrade of her general under honorable conditions discharge to an honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 states, in effect, she was sexually harassed by her sergeant while she was in the Army. She reported it to the General; however, the only thing that happened was she was moved to another unit. She developed post-traumatic stress disorder (PTSD) from dealing with the harassment for months. In addition, her husband use to beat her and cheat on her. When she caught him cheating in their bed, she cut all of his tires which led to her being discharged from the Army. 3. The applicant did not submit any documentary evidence in support of her claim. 4. A review of the applicant’s service record shows: a. She enlisted in the Regular Army on 12 May 2009. b. The complete facts and circumstances, in its entirety, surrounding her separation are not available for review. c. On 29 November 2010, the applicant was notified by her commander of his intent to separate her under the provision of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14-12c, commission of a serious offense. Specifically, for being charged with burglary, assault and criminal mischief on 26 July 2010. d. On 29 November 2010, she acknowledged receipt of the foregoing notice from her commander that informed her of the basis for the contemplated action to separate her under AR 635-200, chapter 14-12c, and of the rights available to her. She was advised of her right to consult with counsel prior to submitting her Election of Rights. She also indicated, by circling and writing her initials above, she “was not” a victim of a sexual assault for which an unrestricted report was filed within the past 24 months. e. On 1 December 2010, she consulted with legal counsel who advised her of the basis for the contemplated separation action for misconduct, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to her. She elected to submit a statement in her own behalf. She also acknowledged she: * understood she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to her * understood she could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions * understood if she received a discharge characterization of less than honorable, she could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but she understood that an act of consideration by either board did not imply her discharge would be upgraded f. On 16 December 2010, the separation authority approved the applicant's discharge under the provisions of AR 635-200, chapter 14-12c, commission of a serious offense, with her service characterized as general under honorable conditions. g. Her DD Form 214 shows she was discharged on 4 January 2011, under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, commission of a serious offense, with a characterization of general under honorable conditions. She served 1 year, 7 months, and 23 days of active service. 5. On 26 August 2011, the Army Discharge Review Board (ADRB) carefully examined the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitably and voted to deny relief. 6. U.S. Army Criminal Investigation Command memorandum, dated 30 March 2023, Subject: Request for Sanitized Reports of Investigations (ROIs) and Military Police Reports, states, “a search of the Army criminal file indexes utilizing the information you provided revealed no records pertaining to the applicant. You are advised that records at this center are Criminal Investigative and Military Police Reports and are indexed by personal identifiers such as names, social security numbers, dates and places of birth and other pertinent data to enable the positive identification of individuals.” 7. AR 635-200 states, action will be taken to separate a member for misconduct such as commission of a serious offense. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 8. In reaching its determination, the Board can consider the applicant’s petition and her service record in accordance with the published equity, injustice, or clemency determination guidance. 9. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149 and supporting documents, her ABCMR Record of Proceedings (ROP), and separation of military documentation. The applicant’s military service electronic medical records and VA electronic medical records were reviewed. b. Applicant is applying to the ABCMR requesting a discharge upgrade of her characterization of service from General Under Honorable Conditions to Honorable. The applicant was separated under the provision of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14-12c, commission of a serious offense for being charged with burglary, assault and criminal mischief on 26 July 2010. The applicant states that she was sexually harassed by her sergeant while she was in the Army. She states that she reported the harassment to a General; however, the only thing that happened was that she was moved to another unit. She reports developing post-traumatic stress disorder (PTSD) from dealing with the harassment for months. In addition, the applicant reports that her husband engaged in intimate partner violence (IPV) and adultery. Per applicant’s statement, “when she caught him cheating in their bed, she cut all of his tires which led to her being discharged from the Army”. Per the civilian felony complaint dated 27 July 2010, in the applicant’s military separation documents, the applicant was the perpetrator of the IPV. The report indicates that the applicant went to the home of the person where her husband was visiting, whereupon she entered the residence without permission and in a jealous rage physically threatened him by holding a butcher knife to his neck. Prior to entering the residence, she slashed the four tires of his vehicle. As a result, her husband obtained an order of protection against her. c. The applicant’s military medical records indicate that the applicant’s initial BH encounter was on 3 June 2009 when she presented with complaints of depressed mood related to early childhood trauma as well as physical and emotional abuse by her father. During this appointment she reported a history of self-harm via cutting, prior to military service, as a mechanism to relieve emotional pain. In addition, the applicant shared a history of an inpatient psychiatric hospitalization due to suicidal and homicidal ideation in 2007. Per the record, the behaviors that led to her inpatient psychiatric hospitalization, prior to military service, were triggered by the miscarriage of a pregnancy as a result of physical assault by her abusive boyfriend. Following this pre- military service incident of IPV, the applicant was in acute distress and obtained a weapon with intent to kill her then boyfriend and then drive her car off a cliff. d. During her 10 June 2009 BH visit, the applicant was diagnosed with Adjustment DO with depressed mood. e. A mental health encounter dated 6 August 2010 documents the incident of 26 July 2010 where she slashed the tires of her husband’s vehicle and was arrested. The applicant reported having a court ordered restraining order from her husband and was residing in the barracks. She was diagnosed on 20 August 2010 with Adjustment Disorder with Disturbance of Emotions and Conduct. The record further indicates that the applicant had repeated mental health encounters and was provided with medication management as well as individual and group therapy. On 30 November 2010, she presented for BH services and reported a recent discharge from the Alaska Psychiatric Institute due to suicidal ideation. The applicant continued to receive ongoing BH services until her discharge from the military. f. CID report dated 30 March 2023 revealed no records pertaining to applicant being the victim of a sexual assault. g. Review of the VA electronic medical record indicates that the applicant is 70% service connected for Bipolar Disorder. However, the VA C & P evaluation dated 31 January 2011, that is the basis of her service connection, diagnosed her with Major Depressive Disorder and Borderline Personality Disorder. The report indicates that the applicant did not meet criteria for PTSD and documents that the reported harassment by her sergeant happened once and she was moved from the unit. This C & P exam also indicates the that the applicant had repeated medical (gynecological) encounters and further documents the applicant’s reported history of childhood sexual trauma and attempted rape prior to military service. However, the incident of in-service harassment/attempted assault appeared to have triggered the applicant due to her preexisting history of sexual trauma. h. It is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence that applicant was ever diagnosed with PTSD, however there is sufficient evidence that she had a potentially mitigating experience and has been diagnosed with other potentially mitigating conditions (MDD, bipolar disorder). However, her potentially mitigating conditions and experience would not typically mitigate the offenses she was charged with. That said, she contends her misconduct was related to PTSD and sexual harassment/MST, and per Liberal Consideration guidance, her contention is sufficient to warrant the Board’s consideration. KURTA FACTORS (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The applicant self-asserts PTSD, MST and IPV. (2) Did the condition exist, or experience occur during military service? Yes. The applicant self-asserts PTSD, MST and IPV occurred during her time in service. She has since been service connected for mental health (70% for Bipolar Disorder). (3) Does the condition or experience actually excuse or mitigate the discharge? No. Despite the applicant’s self-assertion of PTSD, she has not met criteria for PTSD during her numerous clinical encounters with medical providers both during and post military service. The applicant has been diagnosed with Adjustment DO, Major Depressive DO (MDD) and Bipolar DO, these conditions do not mitigate the offenses of burglary, assault, and criminal mischief as none of these conditions typically affect one’s ability to distinguish right from wrong and act in accordance with the right. However, as per Liberal Consideration, the applicant’s assertion of MST and IPV as mitigating factors is sufficient to warrant consideration by the Board. 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 advising official finding insufficient evidence the applicant was ever diagnosed with PTSD, however there is sufficient evidence that she had a potentially mitigating experience and has been diagnosed with other potentially mitigating conditions (MDD, bipolar disorder). The Board noted, the medical opine which stated the applicant has been diagnosed with Adjustment DO, Major Depressive DO (MDD) and Bipolar DO, these conditions do not mitigate the offenses of burglary, assault, and criminal mischief as none of these conditions typically affect one’s ability to distinguish right from wrong and act in accordance with the right. 2. Under liberal consideration, the applicant’s mitigating factors were weighed as a clemency determination. However, the Board determined there was insufficient evidence of in-service mitigation to overcome the misconduct. The applicant discharged for misconduct and was provided an under honorable conditions (General) characterization of service. with a characterization of general under honorable conditions. She served 1 year, 7 months, and 23 days of active service. The Board agreed that the applicant's discharge characterization is warranted as she did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. Therefore, relief was denied. 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. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), 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 provides that 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, of the version in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. It provided that action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct an honorable discharge if merited by the Soldier's overall record. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record. It is not an investigative body. 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. 3. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (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 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. 4. 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; TBI; sexual assault; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. 5. 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 (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. 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 based on 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. 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) AR20230001160 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1