IN THE CASE OF: BOARD DATE: 26 September 2023 DOCKET NUMBER: AR20230002095 APPLICANT REQUESTS: an upgrade of her under other than honorable conditions (UOTHC) characterization of service. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) • DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 26 December 2011 • Bachelor of Science degree, dated August 2010 • Certificate of Completion, Manheim Future Leaders 4.0 Program, dated 6 November 2018 • Professional Resume, undated • two statements of support, dated 13 November and 14 November 2022 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), 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. One isolated incident, in an otherwise stellar career, led to her discharge. She was dealing with post-traumatic stress disorder (PTSD) from the things she saw as a Criminal Investigation Division (CID) agent. Even before her brother committed suicide, she was having issues dealing with death which is why she requested a transfer to protections. She should have talked with someone, but she could not deal with her emotions. Her mother convinced her that drugs would be the best solution. b. She has grown exponentially since leaving the Army. She is in charge of a team of nine employees that handle clients throughout the country. She is a single mother of three daughters and owns her own home. She has worked hard to get to where she is at now. 3. The applicant enlisted in the Regular Army on 16 July 2003 for a 3-year period. She was awarded military occupational specialty (MOS) 31D (CID Special Agent). The highest rank she attained was staff sergeant/E-6. 4. She served in Iraq in support of Operation Iraqi Freedom from 15 April 2004 to 15 February 2005. 5. She reenlisted on 25 June 2007 for a 5-year period with a subsequent 5-month extension on 3 July 2007. 6. The applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 22 October 2010 for the following misconduct: • wrongfully used cocaine on two occasions, on or before 1 September 2010 and on or before 15 September 2010 • wrongfully used marijuana, on or before 1 September 2010 • without authority, failed to go at the time prescribed to her appointed place of duty, on or about 16 September 2010 • derelict in the performance of duties, willfully used government travel card for personal purchases, on or about 18 August 2010 to on or about 19 August 2010 7. Her punishment consisted of reduction to sergeant/E-5, forfeiture of $1,291.00 pay per month for two months, extra duty for 45 days, and 45 days restriction. 8. A memorandum from the U.S. Army Criminal Investigation Command, Fort Belvoir, VA, dated 21 January 2011, shows the applicant was eliminated from the CID program. The initial request to have the applicant removed from the program is not available for review. 9. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding her discharge processing. However, a memorandum from the U.S. Army Military District of Washington, Office of the Staff Judge Advocate, Fort Lesley J. McNair, DC, dated 28 November 2011, shows a legal review was conducted of the applicant’s administrative separation board. The report of investigation was legally sufficient. The board found the evidence supported the allegations and recommended an UOTHC separation due to the applicant’s repeated use of illegal drugs, lack of rehabilitation potential, and unauthorized use of a government credit card. The proceedings complied with applicable regulatory guidance supported the findings of the board; and its recommendation of an UOTHC separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 14-12c. 10. The separation authority approved the recommended separation action on 16 December 2011. He further directed the applicant be reduced to the rank of private/E-1 and the issuance of a UOTHC characterization of service. 11. Accordingly, the applicant was discharged on 26 December 2011. Her DD Form 214 confirms she was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (serious offense). She was credited with 8 years, 5 months, and 11 days of net active service. Her service was characterized as UOTHC. Her awards include the: • Army Commendation Medal • Army Achievement Medal (2nd award) • Joint Meritorious Unit Award • Meritorious Unit Commendation • Army Good Conduct Medal (2nd award) • National Defense Service Medal • Global War on Terrorism Service Medal • Iraq Campaign Medal with one campaign star • Noncommissioned Officer Development Ribbon • Army Service Ribbon • Overseas Service Ribbon (2nd award) 12. The Army Discharge Review Board (ADRB) reviewed the applicant's request for a discharge upgrade on 7 December 2012. After careful consideration, the Board determined she was properly and equitably discharged. Her request for a change in the characterization of her service was denied. The Board further determined that the applicant’s DD Form 214 contained erroneous entries in Item 25 (Separation Authority) and Item 26 (Separation Code). The Board directed the following changes: • Item 25, separation authority to read Army Regulation 635-200, Paragraph 14-12c (2) • Item 26, separation code to read “JKK” 13. The applicant was issued a corrected copy of her DD Form 214 on 3 January 2013 with the above corrections. Item 28 (Narrative Reason for Separation) was also corrected to read “Misconduct (Drug Abuse)”. 14. The Army Review Boards Agency (ARBA), Case Management Division, sent the applicant a letter on 4 April 2023 requesting additional medical documentation to support her contention of PTSD. The applicant provided an email response on 5 April 2023, wherein she stated, in effect, the counselors she saw in 2010 to 2011 told her that her brother’s suicide and the similarity of the CID claims she worked caused a form of PTSD. She also stated she did not “apply for any sort of PTSD” despite indicating such on her application. 15. The applicant provides the following: a. A diploma from the State University of New York, Empire State College, shows she was awarded her Bachelor of Science Degree in August 2010. b. A certificate of completion was awarded to her on 6 November 2018 for the completion of the Manheim Future Leaders 4.0 Program. c. A copy of her resume provides an outline of her education, work history, and post-service accomplishments. d. Two statements of support from her direct supervisor and a co-worker, wherein they state, in effect, the applicant is reliable and hard-working. She is always there to support her team and still finds time to assist others. Her brother’s suicide was difficult for her to cope with which led to her drug use. She had an otherwise perfect 10-year career in the Army. That one mistake was a long time ago. She has learned and grown in that amount of time. 16. Regulatory guidance provides when an individual is discharged under the provisions of Army Regulation 635-200, Chapter 14, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. Characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate. 17. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 18. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of her under other than honorable conditions (UOTHC) characterization of service. She contends she experienced PTSD that mitigated his misconduct. 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 16 July 2003; 2) She served in Iraq from 15 April 2004-15 February 2005; 3) On 22 October 2010, the applicant accepted non-judicial punishment (NJP) for: A) wrongful use of marijuana; B) wrongfully use of cocaine on two occasions; C) failure to go at the time prescribed to her appointed place of duty; D) and dereliction in the performance of duties and willful use of a government travel card for personal purchases; 4) The applicant was discharged on 26 December 2011, Chapter 14-12c, for misconduct (serious offense). Her service was characterized as UOTHC; 5) The Army Discharge Review Board (ADRB) reviewed and denied the applicant's request for a discharge upgrade of her discharge on 7 December 2012. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The Armed Forces Health Longitudinal Technology Application (AHLTA) and the VA’s Joint Legacy Viewer (JLV) was also reviewed. No additional medical documentation was provided by the applicant. d. The applicant asserts she was experiencing PTSD a result of her career as a CID agent, and she was also having difficulty emotionally after her brother’s suicide. There was evidence the applicant was seen in behavioral health services for symptoms of depression in August 2006. The applicant reported a lengthy history of low mood with a recent increase in her symptomatology related to a recent mischarge. She declined further therapy after a few sessions. She was diagnosed with Depressive Disorder NOS and bereavement. She was seen again in April 2009 for insomnia. She reported it was related to leg pain and described taking “4-5 Percocet a day.” She was prescribed sleep medication. e. On 31 August 2010, she was seen by behavioral health at the recommendation of her command. The applicant was reported to have recently returned from emergency leave due to her mother being ill with a brain aneurism, and she also had recently lost her brother to suicide. The applicant was recommended for further individual therapy, but she declined. She instead requested a fitness for duty evaluation to determine if she could return to work. She was seen on 01 and 02 September 2010 for the evaluation. The applicant stated her mother was living with her and abusing illegal drugs. She stated her mother and sister took a significant sum of money from her bank account, and that drug dealers came to her house to threaten her mother for unpaid debts. She used her government travel credit card to pay the drug dealers. Initially, she admitted to using marijuana and denied all other substance abuse. She was diagnosed with Adjustment Disorder with Mixed Disturbance of Emotions and Conduct and recommended for further individual psychotherapy. It was also recommended she not have access to weapon and that Child Protective Services be contacted because of the dangerousness of recent events and the status of the applicant’s young child living with her. The applicant was screened for PTSD and a Traumatic Brain Injury (TBI) during the evaluation, and she was found to not meet criteria for these conditions, but she was determined to meet psychiatric medical retention standards. She was seen again on 10 September 2010 for a follow-up appointment. She was very sleepy and could not stay awake while in the waiting room or during the appointment. It was recommended again that CPS be contacted due to the seriousness of the applicant’s current behavior. It was also noted the applicant had tested recently tested positive for marijuana and cocaine use. f. On 13 September 2010, the applicant was evaluated and began treatment at the Army Substance Abuse Program (ASAP). She was diagnosed with Substance Abuse Disorder. She also was evaluated and found to meet criteria for child neglect by the Family Advocacy Program. The applicant was recommended for detox and substance abuse program at a VA in KY. The applicant repeatedly attempted to discontinue the treatment program early, but her requests were denied. After her discharge, she was seen again at behavioral health on 27 October 2010. She declined individual again psychotherapy, but she agreed to attend medical management appointments to maintain her psychiatric and pain management medications. The applicant also attended ASAP treatment. She was consistently diagnosed with an Adjustment Disorder, Depression, Dysthymia, and Cocaine abuse while in attendance. The applicant continued to deny mental health symptoms other than insomnia, and the applicant requested benzodiazepines regularly to assist her for pain and insomnia. The applicant was prescribed various opioid medications, and she later was diagnosed and treated for opioid and alcohol abuse. g. After her discharge, she was continually seen by military medical providers due to her status an Active Duty dependent. She continued to engage with behavioral health services for medication management services for pain and insomnia. She later was seen by behavioral health for increased depression, anxiety, and family stress. She was diagnosed with Depression with Anxiety in 2014. In 2015, she was diagnosed and treated again for opioid addiction. A review of JLV provided evidence the applicant has received behavioral health treatment from the VA while on active service or as a dependent of a service member for substance abuse treatment. There was insufficient evidence the applicant has ever been diagnosed with PTSD, and she receives no service-connected disability. h. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends she was experiencing PTSD which mitigate her misconduct. The applicant reported a history of depression prior to her enlistment, and she was diagnosed with depressive disorders while on active service as well as substance abuse disorders. (2) Did the condition exist or experience occur during military service? Yes, the applicant contends she was experiencing PTSD which mitigate her misconduct while on active service. The applicant reported a history of depression prior to her enlistment, and she was diagnosed with depressive disorders while on active service as well as substance abuse disorders. (3) Does the condition or experience actually excuse or mitigate the discharge? No, there is insufficient evidence beyond self-report the applicant was experiencing PTSD while on active service. The applicant was engaged in repeated incidents of substance abuse, which can be a sequalae to some mental health conditions including PTSD, but this is not sufficient to establish a history of a condition during active service. She was diagnosed with depressive disorders while on active service, but the applicant was consistently diagnosed with these conditions in response to her family, occupational, and legal stressors at that time. In addition, there is no nexus between misuse of a government travel card and PTSD given 1) this type of misconduct is not part of the natural history or sequelae of PTSD; 2) PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. However, the applicant contends she was experiencing PTSD that mitigated his misconduct, and per Liberal Consideration her contention is sufficient for the board’s consideration. BOARD DISCUSSION: 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 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. The applicant was discharged from active duty due to misconduct – commission of a serious offense. 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 insufficient evidence of in-service mitigating factors to overcome the misconduct. The Board noted that the applicant’s post-service achievements in support of a clemency determination warrant consideration. She provides a diploma that shows she was awarded her Bachelor of Science Degree in August 2010, certificate of completion was awarded to her on 6 November 2018 for the completion of the Manheim Future Leaders Program, as well as two statements of support from her direct supervisor and a co-worker, wherein they state, in effect, the applicant is reliable and hard-working. 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. 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: In addition to the correction addressed in Administrative Note(s) below, the Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 for the period ending 26 December 2011 showing: • Character of Service Under Honorable Conditions, General. • 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows her DD Form 214, for the period ending 26 December 2011, is missing an important entry that may affect her eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entry in item 18 (Remarks): CONTINUOUS HONORABLE SERVICE FROM 20030716 UNTIL 20070624. REFERENCES: 1. Title 10, USC, 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. Section 1556 of Title 10, USC, 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. 3. Army Regulation 635-5 (Personnel Separations), 15 August 1979, in effect at the time did not provide for an additional entry for continuous honorable active service, when a Soldier who previously reenlisted without being issued a DD Form 214 was discharged with any characterization of service except honorable. However, an interim change, published on 2 October 1989 does provide for such an entry. 4. Army Regulation 635-200 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 states 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 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). 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 appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if merited by the Soldier’s overall record. 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 Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including post-traumatic stress disorder; traumatic brain injury; sexual assault; or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. 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//