IN THE CASE OF: BOARD DATE: 12 September 2023 DOCKET NUMBER: AR20230001722 APPLICANT REQUESTS: reconsideration of her previous request for an upgrade of her bad conduct discharge (BCD) to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • Self-authored letter • DD Form 214 (Certificate of Release or Discharge Active Duty), dated 9 August 1984 • Character reference letters (four) • Court-martial documents • In-service awards and certificates • U.S. Army Judiciary letter 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 AC87-06883 on 13 July 1988. 2. The applicant states: a. When she joined the Army, she was confident and proud of her decision. She was 30-years old, divorced and lived with her 7 year-old son. She reviewed the situation and gave custody of her son to his father. She saw her enlistment as a chance to improve herself in every way possible. Therefore, she had only hope and optimism for her enlistment time. b. Her permanent duty station was in Germany. She enjoyed her job and performed well for over two years. She became ill with a cyst and was unable to keep up with her unit standards. Suddenly, she was offered various administrative discharges by her company commander. All she wanted was to be medically treated. She turned the offers down and she was threatened by her commander with either taking the Chapter or jail. She requested to be relocated, but was denied. In the meantime, her cyst worsened. c. She was denied medical treatment by the military, so she sought civilian assistance. She was treated by a German civilian doctor. She was in pain, so she was unable to report for work. She phoned in and she was told that everything would be fine, which meant that the phone call was accepted for her accountability. She was thrown into pre-trial confinement and charged with four counts of failure to report, six counts of disobeying orders, one count of feigning physical disability, and one count of being absent without leave (AWOL). d. She was a Soldier and served her country, yet she was unduly harassed. She believes she was conspired against and railroaded out after almost three years of service. She is enduring life with a BCD. She has proven to be an excellent citizen since her discharge. 3. The applicant enlisted in the Regular Army on 8 February 1980, for 4 years. Upon completion of training, she was awarded military occupational specialty 31E (Field Radio Repairman). 4. On 20 April 1982, the applicant was reported as AWOL and remained so absent until on or about 1710 hours, 20 April 1982. 5. A civilian physician noted, on 9 June 1982 the applicant complained of severe lumbar pain, which occasionally radiated to the outer side of the right leg, down the calf. 6. Before a special court-martial on 30 June 1982, at Aschaffenburg, Germany, the applicant was found guilty of: • one specification of being AWOL • two specifications of failing to go at the time prescribed to her appointed place of duty • one specification of willfully disobeying a lawful order from her superior noncommissioned officer • one specification of disobeying a lawful order to report to a chief warrant officer • one specification of willfully disobeying a lawful order to sign in at the Charge of Quarters desk every hour on the hour from 1800 to 2300 hours • one specification of disobeying a lawful order to go back to her place of duty • one specification of disobeying a lawful order to fall in the at the left side of the formation • one specification of disobeying a lawful order to change into her duty uniform and report to the company area • one specification of feigning injuries to avoid service as an enlisted person 7. The court sentenced the applicant to reduction to the grade of E-1, forfeiture of $367.00 pay for three months, confinement at hard labor for three months, and discharge from the service with a BCD. The sentence was approved on 23 November 1982, and the record of trial was forwarded for appellate review. 8. On 19 October 1982, the applicant was placed on excess leave. 9. The U.S. Army Court of Military Review (USACMR) affirmed the findings and sentence on 29 February 1984. 10. An Army Judiciary letter, dated 4 April 1984, shows the applicant acknowledged that she received a copy of the decision of the USACMR. Additionally, she understood that she has been advised of her right to petition the U.S. Court of Military Appeals for a grant of review, within 60 days. 11. Special Court-Martial Order Number 317, issued by the U.S. Army Correctional Activity, Fort Riley, KS on 30 July 1984, noted that the applicant's sentence had been affirmed and ordered the BCD duly executed. 12. The applicant was discharged on 9 August 1984. Her DD Form 214 confirms she was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, as a result of court-martial. She was discharged in the lowest enlisted grade and her service was characterized as bad conduct. She completed 4 years, 3 months, and 7 days of net active service this period with 84 days of lost time (Separation Code JJD, Reentry Code 4). 13. The applicant petitioned the Army Discharge Review Board requesting upgrade of her service characterization. On 27 October 1986, the Board voted to deny relief and determined her discharge was both proper and equitable. 14. The applicant petitioned the ABCMR requesting upgrade of her BCD. On 13 July 1988, the Board voted to deny relief and determined that the applicant failed to submit sufficient relevant evidence to demonstrate the existence of probable material error or injustice. 15. The applicant provides the following: a. Character reference letters that collectively attest to the applicant's intent to better herself, kindness, and her faith. b. Multiple in-service awards and certificates in recognition of her accomplishments. 16. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code (USC), Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 17. 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. 18. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's available records in the VA's Joint Legacy Viewer (JLV). There were no records in the Interactive Personnel Electronic Records Management System (iPERMS), or in the Health Artifacts Image Management Solutions (HAIMS) likely due to the age of the case. The applicant requests discharge upgrade from Bad Conduct to Honorable. She stated that medical problems and racial discrimination impaired her ability to serve. She also contends that her punishment was more harsh than others received for the same offense. b. The ABCMR ROP summarized the applicant’s available record. Of note, she entered active duty 08Feb1980. Her MOS was 31E10 Field Radio Repairman. She deployed to Germany from 19810314 to 19820628. She was discharged prior to the end of term of service on 09Aug1984 under provisions of AR 635-200 chapter 3, section IV, as a result of court-martial. The sentence was adjudged on 30Jun1982. The ABCMR ROP listed the multiple offences for which she was found guilty the tenor of which included several instances of not reporting to place of duty and failing to obey lawful orders mostly occurring 06-29Apr1982. Of note, she was also found guilty of feigning injury to her back, left leg and right ankle on or about 22Apr1982. There was only one other listed offence that occurred outside of this time frame (29Jul1982). c. The applicant indicated in her statement that between 06-29Apr1982, she was charged with multiple offences that came about due to her development of a cyst which interfered with duty performance and worsened because she was denied medical treatment. She eventually sought treatment by a civilian doctor. The civilian doctor’s note indicated the applicant was seen on 23Apr1982 complaining of severe pain in the vaginal area with radiation into the legs. She was diagnosed with a Bartholin Gland Abscess. The doctor indicated that the applicant was unable to work from 22Apr1982 through 26Apr1982 due to suppuration. The Bartholin Gland, located in the vulva, secretes mucus. Blockage can lead to formation of a cyst. The cyst can become infected, then it’s called an abscess. Treatment is surgical incision of the abscess to allow drainage. The incision and drainage is generally followed by a method to keep the wound open to continue drainage; to promote closing of the wound from inward first to outward last; and to discourage recurrence, and involves the following: Placement of a catheter at the site (for a large abscess) or sitz baths or warm compresses (for a small abscess). There is usually a follow up visit to check wound progress and/or remove the catheter. The Bartholin Gland Abscesses are associated with severe pain and swelling that typically impedes both walking and sitting. The civilian doctor indicated the applicant’s abscess was draining pus (suppuration) and implied that it needed to drain further. After the draining ceased, the wound would need time to close and heal completely. d. On 09Jun1982 the applicant was seen for severe lumbar (low back) pain with occasional radiation to the right leg. The lumbar spine film showed a divided sacral promontory anomaly but was otherwise normal. The physician noted that the subjective symptom of pain described by the applicant, was corroborated by objective findings of the physical examination in the form of radiating pain in the distribution of the L5 nerve root congruent with paresthesia (abnormal or “pins and needles” sensation) in the same distribution, as well as tenderness in the spine and stiffness during the range of motion exam. The physician’s diagnostic impression was Lumbar Pain with Right L5 radiculopathy. There was no mention of when or under what circumstances the back pain started. e. The record did show that the applicant had a medical problem that directly contributed to the offences that took place from 06-29 April 1982. The Bartholin Gland Abscess would have temporarily impaired duty performance and should “cover” the period before she was seen by the civilian doctor: The 06Apr1982 failure to obey a lawful order offense and 22Apr1982 feigning injury (back, left leg and right ankle) offence because according to medical principles, the abscess certainly formed and festered before the day the abscess was actually treated (on 23Apr1982). It should also be kept in mind that at the time the applicant committed these offences, she was experiencing pain in a private area (the reason was likely unknown to her), and she may have had difficulty explaining/justifying her requests for treatment and/or may not have been willing to disclose to her male superiors any information concerning the true medical problem. In the ARBA Medical Reviewer’s opinion, the nature of treatment for a Bartholin Gland Abscess would justify convalescence after the incision and drainage through 29Apr1982. f. The medical record was silent concerning a cause-and-effect nexus between the lumbar back condition and the listed offences. g. A behavioral health (BH) evaluation was not found while the applicant was in military service nor after discharge. JLV search did not yield any VA facility records. A few VA community partner records were present but did not offer any pertinent medical evidence. The 03Sep2014 Secretary of Defense Liberal Guidance Memorandum and 25Aug2017 Clarifying Guidance were considered; however, there was no documentation to support a BH diagnosis was present at the time of her discharge and thus no BH diagnosis to consider with respect to mitigation of misconduct under this guidance. Based on the available medical evidence, compassion, and/or time passed since discharge; a discharge upgrade to General, Under Honorable Conditions or Honorable may be considered by the Board. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was partially warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. a. The applicant's trial by a court-martial was warranted by the gravity of the offense charged. Her conviction and discharge were affected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which she was convicted. She was given a bad conduct discharge pursuant to an approved sentence of a special court-martial. The appellate review was completed, and the affirmed sentence was ordered duly executed. All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process, and the rights of the applicant were fully protected. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. By law, this Board is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. b. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board reviewed and was persuaded by the medical advisory opinion finding some evidence of in-service mitigating factors and/or medical problem that directly contributed to the offences that took place and possibly contributed to the misconduct. Additionally, the applicant provides multiple character reference letters that collectively attest to the applicant's intent to better herself, kindness, and her faith as well as multiple in-service awards and certificates in recognition of her accomplishments. Based on a preponderance of evidence, the Board determined that the applicant’s service clearly did not rise to the level required for an honorable characterization of service; however, a general discharge is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF xx: xx: xx: GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant partial amendment of the ABCMR's decision in Docket Number AC87-06883 on 13 July 1988. 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 9 August 1984 showing his character of service as Under Honorable Conditions, General. • Separation Authority: No Change • Separation Code: No Change • Reentry Code: No Change • Narrative Reason for Separation: No Change 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to fully honorable. 9/12/2023 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. Title 10, USC, 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. 2. Army Regulation 15-185 (ABCMR) sets forth procedures for processing requests for the correction of military records. Paragraph 2-15a governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR. The applicant must provide new relevant evidence or argument that was not considered at the time of the ABCMR's prior consideration. 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 3, section IV provided that a member would be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 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/NR) 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//