IN THE CASE OF: BOARD DATE: 26 September 2023 DOCKET NUMBER: AR20230001462 APPLICANT REQUESTS: • reconsideration of her previous request to upgrade her characterization of service from under honorable conditions (general) to honorable • a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • Personal Statement with Timeline, 18 July 2018 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20190008361 on 11 February 2021. 2. The applicant states, in effect, while serving in the military she was a victim of sexual assault and the experience directly contributed to her discharge. The military sexual assault was repeated constantly over the course of her military career, while stationed overseas. She feared for her life, her safety, and felt hopeless. Her pattern of misconduct was a result of being repeatedly sexually assaulted while in the military. She has a 100 percent service-connected disability rating from the Department of Veterans Affairs (VA) for post-traumatic stress disorder (PTSD), military sexual trauma (MST), with persistent depressive disorder because she was a victim of sexual assault while serving in the military. This experience explains and contributes more than any other reason for her discharge. 3. The applicant provides a personal statement with a timeline of events that occurred from October 1989 to June 1991. • 16 October 1989 – she went to sick call (Darmstadt, Germany) and informed her doctor of the stress she was experiencing at work. She had suicidal ideation and was experiencing sleep disturbance, all as a direct result of her being sexually assaulted by the perpetrator. • 26 March 1990 – she received a written letter of request for transfer. She requested a transfer to be moved out of the area from the perpetrator. She feared for her safety and felt by moving out of the same building with the perpetrator, the sexual assault would stop. Her supervisor classified the reason for the request for prejudice because of her medical condition. This was in direct result of her being sexually assaulted by the perpetrator. The sexual assault continued even after the transfer was granted. • 31 May 1990 –she went to sick call (Darmstadt, Germany). She contracted a sexually transmitted disease from the perpetrator, after being sexually assaulted. • 26 August 1990 – she received an Article 15 for having a friend stay in her room against barracks policy. She asked a friend to stay in her room because she feared the perpetrator would come and sexually assault her again that evening. • 1 October 1990 – she went to sick call (Darmstadt, Germany) because of painful urination, bleeding, and vaginal discharge; a direct result of being sexually assaulted by the perpetrator the night before. • 10 January 1991 – she received an Article 15 for stealing shoes from the Post Exchange (PX). She was no longer rational and feared the sexual assault would never stop. She did not plan to steal the tennis shoes; she saw the perpetrator at the PX coming towards her and got scared and impulsively grabbed the tennis shoes and walked out the PX. She started drinking excessively after this. • 15 January 1991 – she received a written letter of counseling for substance abuse. She was caught drinking excessively, being inappropriate, intoxicated, and unable to perform her military duties. She was drinking in an attempt to numb the emotional pain of being repeatedly sexually assaulted in the miliary from the perpetrator. • 13 May 1991 – she received a written letter of counseling because she missed formation. She missed physical training (PT) formation because she was intoxicated and in great pain because of being sexually assaulted the night before. • 28 June 1991 – She was discharged from the Army “Under Honorable Conditions” as a result of “Pattern of Misconduct.” 4. The applicant’s DD Form 149 and personal statement indicate her military medical records and VA documents are attached to the application; however, the documents were not included for consideration. 5. A review of the applicant’s service record shows: a. The applicant enlisted in the Regular Army on 28 March 1989. b. DA Form 4856 (General Counseling Form), dated 26 March 1990, shows she was counseled for being moved from the G4 section at the direction of the Deputy Commanding General; it was her impression that the noncommissioned officer support channel in G4 had a personal prejudice against her because of her medical condition. The counseling further stated that there was no real proof of this and since she was being moved because of her perception of prejudice she should consider this move a rehabilitative transfer and realize that if she was unable to function effectively in her new environment she may be considered for elimination from the service. c. On 25 September 1990, she accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for “wrongfully having another resident” in her room after visitation hours. Her punishment consisted of forfeiture of $189.00, suspended, to be automatically remitted if not vacated before 25 December 1990, reduction to the rank/grade of private (PV2)/E-2), and 7 days of extra duty. The applicant appealed; however, her appeal was denied. d. DA Form 4856, dated 15 January 1991, shows she was counseled for her conduct on the night of 10 January 1991, wherein she violated the company’s barracks policy. She was informed that continuation of such behavior may result in the initiation of separation action against her. e. On 11 February 1991, she accepted NJP under the provisions of Article 15, UCMJ, for stealing two pair of Nike “Air Jordan” tennis shoes, valued of about $190.00, the property of the Army and Air Force Exchange Service, Europe. Her punishment consisted of reduction to the rank/grade of private (PVT/E-1), forfeiture of $100.00 for two months, restriction for 45 days, and 45 days of extra duty. f. DA Form 4856 shows she was counseled for missing PT formation on 13 May 1991. g. On 10 June 1991, the applicant’s immediate commander notified her of his intent to initiate separation actions against her under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), paragraph 14-12b, for a pattern of misconduct. The commander listed the following reasons for the proposed separation: actions reflected in her Company Grade Article 15, dated 25 September 1990 and actions reflected in her Field Grade Article 15, dated 11 February 1991. The commander informed the applicant that he was recommending she receive a general discharge under honorable conditions, and he explained her rights. h. On 10 June 1991, after consultation with legal counsel, she acknowledged: • the rights available to her and the effect of waiving such rights • she does not desire further rehabilitation or further military service • she may be discharged with a general, under honorable conditions or under other than honorable conditions discharge • she may apply to the Army Discharge Review Board and/or the Army Board for Correction of Military Records for an upgrade • she will be ineligible to apply for enlistment for a period of 2 years following discharge • she may expect to encounter substantial prejudice in civilian life • she elected not to submit a statement i. The immediate commander formally initiated separation and recommended the applicant receive a general discharge and her service be characterized as under honorable conditions. The commander stated that he did not consider it feasible or appropriate to accomplish other disposition other than separation from the Army. The intermediate commander echoed this recommendation. j. On 24 June 1991, the separation authority approved the recommended discharge and directed the applicant be issued a general, under honorable conditions discharge, and stated the applicant would not be transferred to the Individual Ready Reserve. k. The applicant was discharged on 28 June 1991. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged under the provisions of AR 635-200, paragraph 14-12b, by reason of misconduct – pattern of misconduct. Her service was characterized as under honorable conditions (general). She completed 2 years, 3 months, and 1 day of net active service during the covered period. 6. On 25 August 1994, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of her discharge. The ADRB determined that the characterization of the discharge received was both proper and equitable. However, the ADRB did direct that the reason and authority for discharge be changed from “misconduct-pattern of misconduct” to “misconduct.” 7. On 14 September 1994, the applicant was issued a DD Form 215 (correction to DD Form 214), for the period ending on 28 June 1991. Item 28 (Narrative Reason for Separation) was changed to “misconduct.” 8. On 16 July 2020, the U.S. Army Criminal Investigation Command conducted a search of the Army criminal file indexes for Reports of Investigation and/or Military Police Reports utilizing the applicant’s information. The search revealed no records pertaining to the applicant. 9. On 11 February 2021, the Board denied the applicant’s request and stated the evidence presented did not demonstrate the existence of a probable error or injustice. The Board determined the overall merits of the case were insufficient as a basis for correction of the records of the applicant. 10. By regulation an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 11. By regulation (AR 635-200), when an individual is discharged under the provisions of Chapter 14 for misconduct, an under other than honorable conditions characterization of service is normally appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 12. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 13. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting reconsideration of her previous request to upgrade her characterization of service from under honorable conditions (general) to honorable. She contends that she had experiences and a mental health condition that mitigated her misconduct, military sexual trauma (MST) and PTSD. 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 28 March 1989; 2) On 25 September 1990, she accepted non-judicial punishment (NJP) for “wrongfully having another resident” in her room after visitation hours; 3) On 15 January 1991, she was counseled for her conduct which violated the company’s barracks policy; 4) On 11 February 1991, she accepted NJP for stealing two pair of tennis shoes; 5) The applicant was counseled for missing PT formation on 13 May 1991; 6) The applicant was discharged on 28 June 1991,Chapter 14-12b, by reason of misconduct – pattern of misconduct. Her service was characterized as under honorable conditions (general); 7) On 25 August 1994, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of her discharge; 8) On 11 February 2021, ABCMR denied her request for an upgrade of her discharge. 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 hardcopy civilian behavioral health documentation was provided. The applicant asserts she experienced MST and resultant PTSD while on active service, which mitigates her misconduct. There is insufficient evidence the applicant reported behavioral health symptoms while on active service. Also, on 16 July 2020, the U.S. Army Criminal Investigation Command conducted a search of the Army criminal file indexes, which revealed no records pertaining to the applicant. A review of JLV provided evidence the applicant has been diagnosed and treated for service-connected PTSD related to MST. She was awarded 100% disability for PTSD in 2016. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence to support the applicant had condition or experience that partially mitigated her misconduct. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, she contends she was experiencing symptoms of PTSD related to MST, and has been diagnosed by the VA with service-connected PTSD related to MST. (2) Did the condition exist or experience occur during military service? Yes, she contends she was experiencing symptoms of PTSD related to MST while on active service, and she has been diagnosed by the VA with service-connected PTSD related to MST. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially, the applicant contends she was exposed to MST, which resulted with her experiencing PTSD. Erratic behaviors similar to the applicant’s misconduct of having others in her room, wrongful conduct in the barracks, and missing formation, are often a natural sequalae to MST and PTSD. However, the applicant was also found guilty of stealing two pairs of tennis shoes. There is no nexus between MST or PTSD and this type of misconduct given that: 1) this type of misconduct is not part of the natural history or sequelae of MST or PTSD; 2) PTSD and MST do not affect one’s ability to distinguish right from wrong and act in accordance with the right. However, the applicant contends MST and PTSD resulted in her misconduct, and per the Liberal Consideration Policy, her contention alone is sufficient for consideration. BOARD DISCUSSION: 1. The Board determined the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was discharged from active duty due to a pattern of misconduct. She received a general discharge. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding sufficient evidence of in-service mitigating factors to overcome the misconduct. Based on a preponderance of evidence, the Board determined that an honorable discharge is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests. However, the Board determined, although her character of service is upgraded, the reason for separation and corresponding separation and reentry codes, remain the same and should not change. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 xx: xx: xx: GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20190008361 on 11 February 2021. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 28 June 1991 showing: • Character of Service Honorable • Separation Authority: No Change • Separation Code: No Change • Reentry Code: No Change • Narrative Reason for Separation: No Change 9/26/2023 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), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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 used for 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, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. 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 considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 2. 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 post-traumatic stress disorder (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. 3. 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. 4. 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 regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. 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. 5. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 6. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. 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. //NOTHING FOLLOWS//