IN THE CASE OF: BOARD DATE: 1 August 2023 DOCKET NUMBER: AR20230001592 APPLICANT REQUESTS: An upgrade of her under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge), with a self-authored statement * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 8 October 1981 (2 Copies) * Armed Forces Examining and Entrance Station, employee appreciation letter, 21 September 1977 * Victim/Next of Kin/Family Member Parole Hearing, Notification, 18 August 2004 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: a. She left her Army profession, after continued therapy for military adjustment issues and just leaving was not an option. She received repeated unwanted and threating sexual attention while serving. She sought psychological treatment at Fort Gordon, GA, and did her best to cope. She was too young to protect herself and deal with the unwanted attention, she did not feel safe. b. She details some of her traumatic events as: experiencing the homicide of a family member in August 1979 and having to testify [prior to service]. Having male Soldiers at Fort Jackson, SC, grope and grind on her in the chow line or crowed areas in January 1980. While dancing with one male having a group of males surround them and force her to dance with the group at Fort Gordon, in February 1980. This made her feel unsafe, ashamed, and degraded. She still suffers from memories, sleeplessness, nightmares, headaches and eating disorders. She is constantly on guard and feels numb or detached, from those unwanted sexual traumas. 3. On her DD Form 293, the applicant notes post-traumatic stress disorder (PTSD) and Sexual Assault/Harassment as being related to her request. 4. On 13 December 1979, the applicant enlisted in the Regular Army, for a 4-year service obligation. Her record shows she reported to Fort Jackson on 7 January 1980 to complete basic training. She was reassigned to Fort Gordon on 12 March 1980 for completion of advance individual training. 5. On 5 May 1980, the applicant was reported as absent without leave (AWOL) from her training unit at Fort Gordon and was subsequently dropped from the unit rolls on 4 June 1980. She was returned to military control on 15 August 1981 when she was apprehended by civilian authorities. 6. On 20 August 1981, the applicant consulted with counsel at Fort Knox, KY, and submitted a statement admitting to her AWOL. She made the admission for administrative purpose only to process out of the Army and realized in doing so she may be given an UOTHC discharge. 7. On the same date, the applicant was placed on involuntary excess leave while awaiting approval of her request for separation. 8. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding her discharge processing. However, her DD Form 214 confirms she was discharged on 8 October 1981, under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), Chapter 10, for administrative discharge - conduct triable by court-martial. She was separated in the lowest enlisted grade, with an UOTHC characterization of service. She was credited with completing 6 months and 16 days of net active service this period, with loss time from 5 May 1980 to 14 August 1981. 9. The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army voluntarily, willingly, and in writing discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. 10. On 13 March 2023, in the processing of this case the U.S. Army Criminal Investigation Division, searched their criminal file indexes, which revealed no Criminal Investigative and/or Military Police Reports pertaining to the applicant. 11. The applicant provides a pre-service employment letter in support of her request. 12. 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. 13. MEDICAL REVIEW: a. The applicant requests an upgrade of her under other than honorable conditions (UOTHC) discharge. She contends her misconduct was related to PTSD and Sexual Assault/Harassment. 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 into the Regular Army on 13 December 1979; 2) On 5 May 1980, the applicant was reported as being AWOL from her training unit at Fort Gordon and was subsequently dropped from the unit rolls on 4 June 1980. She was returned to military control on 15 August 1981 when she was apprehended by civilian authorities; 3) On 20 August 1981, the applicant consulted with counsel at Fort Knox, KY, and submitted a statement admitting to her AWOL. She made the admission for administrative purposes only to process out of the Army and realized in doing so she may be given an UOTHC discharge; 4) The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding her discharge processing. However, her DD Form 214 confirms she was discharged on 8 October 1981, under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), Chapter 10, for administrative discharge - conduct triable by court-martial. c. The VA electronic medical record (JLV), ROP, and casefiles were reviewed. The military electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant s time in service. No military BH records were provided for review. A review of JLV was void of any BH treatment records for the applicant and she does not have a service-connected disability. No civilian BH records were provided for review. d. The applicant requests upgrade of her UOTHC discharge to honorable. She contends her misconduct was related to PTSD and Sexual Assault/Harassment. A review of the records was void of any BH diagnosis or treatment history for the applicant during or after military service and she provided no documentation supporting her contention of PTSD and Sexual Assault/Harassment. Additionally, an Army CID memorandum dated 13 March 2023 showed that a search of the Army Criminal File Index revealed no records pertaining to the applicant. In absence of documentation supporting the applicant s assertion, there is insufficient evidence that her misconduct was related to or mitigated by PTSD and Sexual Assault/Harassment, and insufficient evidence to support an upgrade of her UOTHC discharge characterization. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence in the records that the applicant had a condition or experience during her time in service that mitigated her misconduct. However, the applicant appears to contend her misconduct was related to PTSD and Sexual Assault/Harassment, and per Liberal Consideration guidance, her contention is sufficient to warrant the Board s consideration. (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant appears to contends her misconduct was related to PTSD and Sexual Assault/Harassment. (2) Did the condition exist, or experience occur during military service? Yes. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant requests upgrade of her UOTHC discharge to honorable. She contends her misconduct was related to PTSD and Sexual Assault/Harassment. A review of the records was void of any BH diagnosis or treatment history for the applicant during or after military service and she provided no documentation supporting her contention of PTSD and Sexual Assault/Harassment. Additionally, an Army CID memorandum dated 13 March 2023 showed that a search of the Army Criminal File Index revealed no records pertaining to the applicant. In absence of documentation supporting the applicant s assertion, there is insufficient evidence that her misconduct was related to or mitigated by PTSD and Sexual Assault/Harassment, and insufficient evidence to support an upgrade of her UOTHC discharge characterization. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant s 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. a. The applicant s separation packet is not available for review. Other evidence shows the applicant was discharged under the provisions of chapter 10, AR 635-200, with an under other than honorable conditions characterization of service. The issuance of a discharge under the provisions of AR 635-200, Chapter 10, required the applicant to have requested from the Army voluntarily, willingly, and in writing discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. b. The Board reviewed and was persuaded by the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided insufficient evidence of post-service achievements, letters of reference/support, or evidence of a persuasive nature in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :xx :xx :xx 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 3 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 3-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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of Department of Veterans Affairs (VA) benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An UOTHC discharge was normally considered appropriate. 4. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) 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. 5. 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. 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) AR20230001592 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1