IN THE CASE OF: 
BOARD DATE: 20 September 2023 
DOCKET NUMBER: AR20230001868 


APPLICANT REQUESTS: 

•an upgrade of her characterization of service from under other than honorableconditions to under honorable conditions (general)

•a personal appearance before the Board



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

2.The applicant states, in effect:

a.She was sexually harassed in her unit. She went through her chain of commandand was not helped. She was told “this is military and disregard.” The Soldier harassing her was given a key to her room in the barracks. She states her only choice was to leave and go to her family, in fear of more sexual acts happening to her.  

b.She has post-traumatic stress disorder (PTSD) from molestation as a child andrape. She joined the military, and during advanced individual training (AIT) she saw sexual misconduct and sergeants getting female Soldiers pregnant, which resulted in her shutting down. She suffered years of sexual harassment, with nothing being done to help when she reached out to her chain of command. She left and never looked back. She is requesting a discharge upgrade now due to the years of mental PTSD and she is no longer a victim. It is not fair to take what was given and it is not right.  

c.She states that she requested records a year ago and she is still waiting toreceive them from the archives. After years of therapy, she feels she should be given some justice due to the sexual harassment.  

3.A review of the applicant’s service record shows:

a.The applicant's DD Form 4 (Enlistment/Reenlistment Document) shows sheenlisted in the Regular Army on 29 May 1997. 

b.The service record contained multiple DA Forms 4856 (General CounselingForm) to include counselings for the following: 















•7 December 1997 – failure to report to duty•20 December 1997 – late for duty•21 December 1997 – failure to report to duty•21 December 1997 – disobeying a lawful order•5 January 1998 – disobeying a lawful order•6 January 1998 – failure to report to duty•12 January 1998 – failure to report to duty (motorpool)•13 January 1998 – failure to report to duty



c.On 28 January 1998, she accepted non-judicial punishment (NJP), under theUniform Code of Military Justice (UCMJ), with a Summarized Article 15 for being absent from her place of duty on 6 January 1998, 12 January 1998, and 13 January 1998. Her punishment consisted of 7 days of extra duty. 

d.She received additional counseling’s for the following:

•2 February 1998 – failure to pass the physical fitness test

•3 February 1998 – late for duty, leaving duty, and lying

•3 February 1998 – disobeying a lawful order and disrespect to a junior non-commissioned officer

•19 February 1998 – forgery

•23 February 1998 – failure to return to duty



e.DA Forms 4187 (Personnel Action), show the applicant’s duty status changed onthe following dates: 

•Present for Duty (PDY) to Absent without Leave (AWOL) - 29 March 1998

•AWOL to PDY – 31 March 1998

•PDY to AWOL – 25 April 1998

•AWOL to PDY – 29 April 1998


f.On 1 May 1998, she was counseled for failure to be at her appointed place of dutyon 29 April 1998 and being absent from the company accountability formation on 
30 April 1998.  

g.On 1 May 1998, she accepted NJP for failure to be at her appointed place of dutyon 29 April 1998 and for being absent for company accountability formation on 30 April 1998. Her punishment consisted of 4 days extra duty and 4 days restriction to the company area.  

h.On 4 May 1998, she accepted NJP, under the provisions of Article 15, UCMJ, forabsenting herself from her appointed place of duty from on or about 29 March 1998 to on or about 31 March 1998, and for altering an official document on 19 February 1998, with the intent to deceive: to wit: DA Form 689 (Individual Sick Slip). Her punishment consisted of reduction to private/E-1, forfeiture of $216.00, suspended to be automatically remitted if not vacated on or before 30 October 1998, extra duty, and restriction to the limits of the company area, dining/medical facility, and place of worship for 14 days.  

i.On 17 May 1998, the applicant was counseled for failure to be at the appointedplace of duty and failure to report to extra duty. 

j.The applicant’s duty status changed on the following dates:

•PDY to AWOL – 20 May 1998

•AWOL to Dropped from Rolls (DFR) – 21 June 1998

•DFR to attached/returned to military control – 11 July 1998



k.Court-martial charges were preferred against the applicant on 14 July 1998. HerDD Form 458 (Charge Sheet) shows she was charged with three specifications of AWOL for the following periods: 

•from on or about 29 March 1998 to on or about 31 March 1998

•from on or about 25 April 1998 to on or about 29 April 1998

•from on or about 20 May 1998 to on or about 11 July 1998



l.On 14 July 1998, the applicant waived her right to a separation medicalexamination. 

m.On 16 July 1998, after consulting with legal counsel, she requested discharge inlieu of trial by court-martial under Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. The applicant acknowledged: 

•she made the request of her own free will and was not


•she understood by requesting discharge, she was admitting guilt to at leastone of the charges against her, or of a lesser included offense that alsoauthorized the imposition of a bad conduct or dishonorable discharge

•she could be deprived of many or all Army benefits, she could be ineligible formany or all benefits administered by the Veteran’s Administration,

•she could be deprived of her rights and benefits as a Veteran under bothFederal and State law and encounter substantial prejudice in civilian life

•she understood there was no automatic upgrading or automatic review by anygovernment agency of a less than honorable discharge

•she may apply to the Army Discharge Review Board (ADRB) or the ABCMR ifshe wished review of her discharge.



n.On 14 October 1998, the immediate commander recommended approval of therequest for discharge in lieu of trial by court-martial with an under other than honorable conditions characterization of service.  

o.On 29 October 1998, the Chief, Criminal Law Division, reviewed the applicant’srequest for discharge in lieu of trial by court-martial and stated there were no legal objections to further processing in accordance with the unit commander’s recommendation.  

p.On 29 October 1998, consistent with the chain of command recommendations,the separation authority approved the applicant’s request for discharge in lieu of trial by court-martial, directed the applicant be reduced to the lowest enlisted grade, and be issued an under other than honorable conditions discharge. 

q.On 18 November 1998, she was discharged from active duty with an under otherthan honorable conditions characterization of service. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 1 year, 3 months, and 22 days of active service during the covered period. She had the following lost time: 

•29 March 1998 – 30 March 1998

•25 April 1998 – 28 April 1998

•20 May 1998 – 10 July 1998



4.On 13 April 2023, the Criminal Investigation Division (CID) indicated a search of theArmy criminal file indexes utilizing the information provided revealed no recordspertaining to the applicant.

5.There is no indication the applicant applied to the ADRB to request an upgrade ofher characterization of service within the 15-year Statute of Limitations.

6.By regulation (AR 635-5), the DD Form 214 is a summary of the Soldier's mostrecent period of continuous active duty.  It provides a brief, clear-cut record of all currentactive, prior active, and prior inactive duty service at the time of release from activeduty, retirement, or discharge.  The information entered thereon reflects the conditionsas they existed at the time of separation.

7.By regulation (AR 635-200), an individual who has committed an offense or offenses,the punishment for which, includes a bad conduct or dishonorable discharge, maysubmit a request for discharge for the good of the service. An Under Other thanHonorable Discharge Certificate normally is appropriate for a member who isdischarged for the good of the service or in lieu of trial by court-martial.

8.By regulation (AR 15-185), an applicant is not entitled to a hearing before theABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director ofthe ABCMR.

9.In reaching its determination, the Board can consider the applicant’s petition and hisservice record in accordance with the published equity, injustice, or clemencydetermination guidance.

10.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 18November 1998 discharge characterized as under other than honorable conditions.  She states:  
“I was sexually harassed in my unit.  Went through my chain of command and was not helped.  I was told this is military and disregard.  The Soldier harassing me was given the key to my room in the barracks.  My only choice was to leave, go to my family in fear of more sexual acts happening to me. 
PTSD from molestation as a child and rape.  Joined military since.  Since AIT [advanced individual training] unit was shut down due to sexual misconduct and sergeants getting female Soldiers pregnant.  I suffered years of sexual harassment with nothing being done to help when reach out to chain of command.  Was pushed out.” 
c.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 29 May 1997 and was discharged on 18 November 1998 under the separation authority provided by chapter 10 of AR 635-200, Personnel Separations – Enlisted Personnel (17 September 1990): Discharge for the Good of the Service.  It shows no periods of service in a hazardous duty pay area. 
d.In addition to 8 counselings for failure to repair, she received 3 counselings fordisobeying a lawful order, one for failure to pass an Army Physical Fitness Test (APFT), one lying to a noncommissioned officer, one for disrespect to a noncommissioned officer, and one for forgery.  On 4 May 1998, she received an Article 15 for a period of absence without leave in violation of article 86 of the UCMJ and alteration of an official document with intent to deceive in violation of article 107 of the UCMJ.  
e.The applicant went AWOL for the third time on 20 May 1998 and remained so until11 July 1998. 
f.A 14 July 1998 Charge Sheet (DD form 458) shows the applicant was charged withthree specifications of absence without leave (AWOL).  She declined a separation medical examination the same day.  
g.On 16 July 1998, the applicant voluntarily requested discharge in lieu of trial bycourt-marital under chapter 10 of AR 635-200.  The battalion commander approved her request on 29 October 1998 with the directives she receive an under other than honorable characterization of service with a reduction in rank Private E1 IAW paragraph 6-1e of AR 600-8-19, Enlisted Promotions and Reductions (8 April 1994).

h.No probative medical documentation was submitted with the application.  JLVshows she that she was diagnosed with depression and generalized anxiety disorder while on active duty.   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?  Yes: Depression and applicant claims sexual 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?

Partially: As there is an association between depression and avoidant behaviors, there is a nexus between the applicant’s diagnosed mental health condition, her failures to repair, and incidents of AWOLs.  There is also an association with irritability / irascibility and so the condition mitigates his insubordinate conduct.  However, neither the depression nor sexual harassment interfere with one’s ability to distinguish between right and wrong and act in accordance with the right and so cannot mitigate her lying to a non-commissioned officer or alteration of an official document. 


BOARD DISCUSSION: 

1.After reviewing the application, all supporting documents, and the evidence foundwithin the military record, the Board found that relief was not warranted The Boardcarefully considered the applicant's record of service, documents submitted in supportof the petition and executed a comprehensive and standard review based on law, policyand regulation, and published Department of Defense guidance for liberal and clemencydeterminations requests for upgrade of her characterization of service.  Upon review ofthe applicant’s petition, available military records and medical review, the Boardconcurred with the advising official partially finding an association between depressionand avoidant behaviors, there is a nexus between the applicant’s diagnosed mentalhealth condition, her failures to repair, and incidents of AWOLs.  There is also anassociation with irritability / irascibility and so the condition mitigates his insubordinateconduct.

2.The Board determined there is insufficient evidence of in-service mitigating factors toovercome the misconduct. The Board found that neither the depression nor sexualharassment interfere with the applicant’s ability to distinguish between right and wrongand act in accordance with the right and cannot mitigate her lying to a non-commissioned officer or alteration of an official document. The applicant provided noevidence of post-service achievements, or letters of reference in support of a clemencydetermination. The Board determined the applicant’s service record exhibits numerousinstances of misconduct during her enlistment period for 1 year, 3 months, and 22 daysof net service for this period   Based on a preponderance of evidence, the Boarddetermined that the character of service the applicant received upon separation was notin error or unjust. Therefore, relief was denied.

3.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 

: : : 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. 



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.Army Regulation 635-5 (Separation Documents) states the DD Form 214 is asummary of the Soldier's most recent period of continuous active duty.  It provides abrief, clear-cut record of all current active, prior active, and prior inactive duty service atthe time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 
 
3.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. 
 
 a.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor.  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 (General Discharge) states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 
 
c.  Chapter 10 of this regulation states an individual who has committed an offense or offenses, the punishment for any of which includes a bad conduct discharge or dishonorable discharge, may submit a request for discharge for the good of the service.  An Under Other than Honorable Discharge Certificate normally is appropriate for a member who is discharged for the good of the 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 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. 
 
6.  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. 
 
7.  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. 
 
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