IN THE CASE OF: BOARD DATE: 27 September 2023 DOCKET NUMBER: AR20230002699 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) * two statements of support, dated 21 March 2022 and 15 April 2022 * medical document, 11 November 2022 * letter, Valley Spring Family Medicine, dated 2 December 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 she would like to upgrade her discharge to receive benefits. She notes post-traumatic stress disorder (PTSD) and other mental health as conditions related to her request. 3. The applicant enlisted in the Regular Army on 26 February 1999 for a 3-year period. The highest rank she attained was private first class/E-3. 4. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice, on 13 June 2000, for three occasions of failure to go at the time prescribed to her appointed place of duty on or about 5 May 2000 and on or about 16 May 2000. Her punishment consisted of extra duty for 14 days. 5. She was formally counseled on three occasions between 11 July 2000 and 13 July 2000. Areas of emphasis covered in the counseling include, but are not limited to: * insubordinate conduct towards a noncommissioned officer (NCO) * refusal to obey extra duty orders * change of chapter from Chapter 8 (Pregnancy) to Chapter 14 (Misconduct) * pattern of misconduct * malingering * false official statement * fraudulent separation 6. Two DA Forms 4187 show the following changes in the applicant’s duty status: * Present for duty to absent without leave (AWOL) – 19 July 2000 * AWOL to present for duty – 8 August 2000 7. A DA Form 4187 (Personnel Action), dated 11 August 2000, shows the applicant requested her last name be changed from to, by reason of marriage. 8. The applicant was formally counseled on seven occasions between 15 August 2000 and 5 December 2000. Areas of emphasis covered in the counseling include, but are not limited to: * malingering after the unfortunate termination of her pregnancy * shirking extra duty * 20 days of AWOL, terminated by apprehension * disorderly conduct * imposed restrictions * patterns of misconduct * failure to be at appointed place of duty on multiple occasions * failure to obey orders on two occasions * disrespect to an NCO on two occasions * leaving a counseling session without being excused 9. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice, on 30 October 2000, for being AWOL on or about 19 July 2000 until on or about 8 August 2000. Her punishment consisted of reduction to private/E-2, forfeiture of $263.00 pay per month for two months, 45 days of extra duty, and 10 days of restriction. 10. The applicant underwent a mental status examination on 29 December 2000. She was deemed mentally responsible and psychiatrically cleared for further administrative actions deemed appropriate by the command. 11. A Standard Form (SF) 93 (Report of Medical History), dated 4 January 2001, and the corresponding SF 88 (Report of Medical Examination) show the applicant underwent a pre-separation medical examination. The examining physician determined she was physically qualified for separation. 12. The applicant's immediate commander notified the applicant on 22 January 2001 of his intent to initiate separation actions against her under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for patterns of misconduct. Her commander noted the applicant's Field Grade Article 15, detention by the Military Police for disrespect and disobeying an officer and NCO, and numerous occasions of disrespecting and disobeying an NCO as the reasons for the proposed separation action. 13. On that same date, the applicant consulted with counsel. She was advised of the basis for the contemplated action to separate her and of the rights available to her. She acknowledged receipt and elected not to submit a statement in her own behalf. 14. The commander formally recommended the applicant’s separation from service under the provisions of AR 635-200, paragraph 14-12b, by reason of patterns of misconduct. The intermediate commanders concurred with the recommendation and further recommended a UOTHC characterization of service. 15. On 1 February 2001, the separation authority approved the recommended separation action and directed a UOTHC discharge. 16. Accordingly, the applicant was discharged on 14 February 2001, under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms her character of service was UOTHC. She was credited with 1 year, 11 months, and 19 days of net active service. 17. The Army Discharge Review Board (ADRB) reviewed her request for a discharge upgrade on 15 June 2011. After careful consideration, the Board determined her discharge was proper and equitable. The Board denied her request for relief. 18. The applicant provides the following: a. Two statements of support, dated 21 March 2022 and 15 April 2022, wherein the authors attest to the challenges the applicant has had raising a son while struggling with mental illness. A discharge upgrade would assist her in receiving proper treatment and medication. b. A medical document, dated 11 November 2022, shows a family history of schizoid disorder and bipolar disorder. c. A letter from Valley Spring Family Medicine, dated 2 December 2022, states that the applicant was under the care of a psychiatrist for dissociative identity disorder, bipolar disorder, and depression. 19. Regulatory guidance provides when an individual is discharged under the provisions of Army Regulation 635-200, Chapter 14, by reason of misconduct, an under other than honorable conditions characterization of service is normally appropriate. 20. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 21. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of her under other than honorable conditions (UOTHC) characterization of service. The applicant asserts PTSD and other mental health as related to her request for upgrade. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * Applicant enlisted in the Regular Army on 26 February 1999. * Applicant accepted non-judicial punishment (NJP), on 13 June 2000, for three occasions of failure to go at the time prescribed to her appointed place of duty on or about 5 May 2000 and on or about 16 May 2000. * She was formally counseled on three occasions between 11 July 2000 and 13 July 2000. Areas of emphasis covered in the counseling include, but are not limited to: insubordinate conduct towards a noncommissioned officer (NCO), refusal to obey extra duty orders, change of chapter from Chapter 8 (Pregnancy) to Chapter 14 (Misconduct), pattern of misconduct, malingering, false official statement, and fraudulent separation. * The applicant was formally counseled on seven occasions between 15 August 2000 and 5 December 2000. Areas of emphasis covered in the counseling include, but are not limited to: malingering after the unfortunate termination of her pregnancy, shirking extra duty, 20 days of AWOL - terminated by apprehension, disorderly conduct, imposed restrictions, patterns of misconduct, failure to be at appointed place of duty on multiple occasions, failure to obey orders on two occasions, disrespect to an NCO on two occasions, leaving a counseling session without being excused * The applicant accepted NJP, on 30 October 2000, for being AWOL on or about 19 July 2000 until on or about 8 August 2000. * The applicant's immediate commander notified her on 22 January 2001 of his intent to initiate separation actions against her under AR 635-200, paragraph 14-12b, for patterns of misconduct. Her commander noted the applicant's Field Grade Article 15, detention by the Military Police for disrespect and disobeying an officer and NCO, and numerous occasions of disrespecting and disobeying an NCO as the reasons for the proposed separation action. Separation was approved. * Applicant was discharged 14 February 2001 under AR 635-200, Ch 14-12b with an UOTHC discharge. * The ADRB denied her request for a discharge upgrade on 15 June 2011. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 293, ABCMR Record of Proceedings (ROP), two statements of support, medical document, letter from Valley Spring Family Medicine, DD Form 214, as well as documents from her service record and separation. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant asserts PTSD and other mental health as related to her request for upgrade. She stated in her application that she is requesting an upgrade to receive benefits. In addition, per her supporting documents (from multiple sources), she experienced sexual harassment and reprisal. Per letters of support, the applicant is described as having changed significantly after returning from her military service. Both letters speak to her mental health (indicating she has been diagnosed with schizoaffective disorder and dissociative identity disorder [DID]). Her godmother reports that the applicant was significantly mistreated, to include was appears to be sexual harassment and/or assault (“subject to unscrupulous, deplorable, heinous, egregious unwanted gestures, sexually explicit and degradable demands set forth by her commanding officer”). The letter also states she was forced to do unwarranted manual labor while they knew she was pregnant, which led to a miscarriage. She reportedly also experienced reprisal when she threatened to expose the behavior of her commander. She was reportedly threatened, and this is when she went AWOL. The godmother goes onto describe her behavior after the service, which evidences a traumatic response. The godmother also goes on to describe the significant struggles she has faced since her discharge, with her family and son, as well as details of her DID diagnosis. e. The applicant’s time in service predates consistent use of electronic health records (EHR) by the Army, hence no EHRs are available for review. Her service record and supporting documents did not contain her service treatment records (STR). However, in a Developmental Counseling Form dated 15 August 2000, the commander noted “continued misconduct and obvious mental issues.” In the same statement he noted “PFC Pinckney claims mental problems but has been found fit for duty and responsible for her actions by LTC Bell, CMH, on two occasions within the last two days.” However, these encounters were not provided in the record. The applicant later attended a mental status examination (MSE), as part of her separation packet, on 29 December 2000. The applicant was found to have the mental capacity to understand and participate in the proceedings, was mentally responsible, met medical retention requirements per AR 40-501 chapter 3, her mental status was within normal limits and there was no evidence of psychosis. She was psychiatrically cleared for further administrative actions deemed appropriate by the command. Of note, this MSE does not mention her previous evaluations at mental health, nor does it list any previous diagnoses. It only states she isn’t psychotic. In her supporting documents, her godmother mentioned being seen by mental health and placed on medications, which is partially substantiated by the counseling statement of the commander, however, it is not seen reflected in the MSE. f. A Standard Form (SF) 93 (Report of Medical History), dated 4 January 2001, and the corresponding SF 88 (Report of Medical Examination) show the applicant underwent a pre-separation medical examination. The examining physician determined she was physically qualified for separation. However, the applicant endorsed experiencing, frequent trouble sleeping (pregnant), depression and excessive worry (stress), and nervous trouble of any sort (shakiness). She also reported that she had been referred to mental health and the doctor noted that she was treated at the mental health clinic for depression. g. The applicant provided a letter from her doctor at ValleySpring Family Medicine. The letter identifies that she has been diagnosed with DID since 2007, though her parents noted symptoms of it as early as 6 years of age. She is also under the care of a psychiatrist for depression and bipolar disorder. The letter speaks to her being sexually harassed at work, and that her commander had threatened her, hence suggesting charges against her to get her discharged were reprisal (given she was supposed to be discharged due to her pregnancy). She also provided a medical record that shows family history of schizoid and bipolar disorder. Per the applicant’s EHR since discharge, she is not service connected. She’s had no engagement with the VA since her discharge, though given the characterization of her discharge, she would not typically be eligible for most VA benefits. She was seen by the DoD after discharge (likely as a dependent). There is a consultation repot from August 2003 that states she had been newly diagnosed with OCD and trichotillomania and was in need of evaluation for behavior modification to address hair pulling. She was seen and diagnosed with insomnia in 2004. Her records from 2004 also evidence that she was on mental health medication, to include Celexa. Through review of JLV, this applicant did have “Community Health Summaries and Documents” available. Her records reflect she has been diagnosed with schizoaffective disorder, posttraumatic stress disorder – unspecified (PTSD), and sleep apnea. Her records indicate she has been on significant mental health medications. However, these summaries do not provide specific details about her mental health treatment, nor etiology of her diagnoses. h. It is the opinion of the Agency Behavioral Health Advisor that there is sufficient evidence to support the applicant had a mitigating condition and experience at the time of service and has since been diagnosed with several conditions commonly considered severe and persistent. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant asserted PTSD and other mental health. Her supporting documents asserted sexual harassment and reprisal. (2) Did the condition exist, or experience occur during military service? Yes, the applicant asserts the mental health conditions were present during her time in service. The experiences asserted on her behalf are also reported to have occurred while she was in the service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant asserts mitigation due to PTSD and other mental health conditions. Her doctor and godmother recounted sexual harassment and reprisal. There is sufficient evidence to support that the applicant was experiencing depression during her time in service and based on all supporting evidence may have also been having episodes of DID. In addition, she experienced the loss of a pregnancy and got pregnant again, which are major life stressors. And lastly, she was reportedly being sexually harassed and threatened and when she stated she would report it, she experienced reprisal. Since her time in service, she has been diagnosed with schizoaffective disorder, bipolar disorder, DID, PTSD and insomnia. Going AWOL and failure to report/be at place of duty are avoidance behaviors consistent with the natural history and sequalae of several mental health conditions and experiences, to include PTSD, depression, and harassment/assault. In addition, it appears a majority of the disobeying NCOs and officers and showing disrespect revolved around her not showing up where she was supposed to (avoiding) or leaving situations, which given the context she may have not felt safe. Acting out in anger and with irritability is also a behavior associated with PTSD and depression, and behaving inappropriately for the context could also be attributed to DID. There is a nexus between these symptoms/experiences and the misconduct that led to her discharge. Accordingly, an upgrade to Honorable is recommended with a narrative reason for separation change to Secretarial Authority. BOARD DISCUSSION: 1. 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 record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of her characterization of service. One potential outcome was to deny relief based on the applicant’s pattern of misconduct and being deemed mentally responsible and psychiatrically cleared for further administrative actions deemed appropriate by the command. However, upon review of the applicant’s petition, available military records and the medical advisory the Board concurred with the advising official finding sufficient evidence to support the applicant had a mitigating condition and experience at the time of service and has since been diagnosed with several conditions commonly considered severe and persistent. The opine noted a nexus between these symptoms/experiences and the misconduct that led to her discharge. 2. The Board found sufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The Board considered the opine recommendation and found the applicant’s case was harsh and warrants clemency with an upgrade of her discharge to under honorable (general) conditions. However, based on the preponderance of evidence the Board determined that the narrative reason and separation code was not in error or unjust. Therefore, the Board granted relief and determined that the discharge characterization was mitigated and should be upgraded to general under honorable conditions. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by re-issuing the applicant a DD Form 214 for the period ending 14 February 2001 showing her characterization of service as general under honorable conditions and in item 29 (Dates of Time Lost During this Period) -20 days ( 19 July 2000 – 7 August 2000). 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 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 635-200 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. 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 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. 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. 5. 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) AR20230002699 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1