IN THE CASE OF: BOARD DATE: 17 January 2024 DOCKET NUMBER: AR20230003481 APPLICANT REQUESTS: reconsideration of her prior requests for the following: * removal from her Official Military Personnel File (OMPF) of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), on or about 20 December 1990 * removal from her OMPF of the DA Form 2627 dated between 1998 - 1999 * reinstatement of her rank/grade from sergeant (SGT)/E-5 to staff sergeant (SSG)/E-6 and/or her rank grade from private (PVT)/E-1 to SGT/E-5 * honorable physical disability retirement vice general discharge under honorable conditions in lieu of court-martial * retroactive pay and benefits * 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's cases by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070015221 on 21 February 2008 and Docket Number AR20210005903 on 6 January 2022. 2. The applicant states: a. Both her misconduct and her reason for separation are incorrect. It wasn’t for a positive urinalysis. It was for wrongful possession and distribution of marijuana. b. She is requesting removal of the DA Form 2627 and reinstatement of her rank for the incident the occurred on or about 20 December 1990. The basis for the Board’s prior denial of this request was there was insufficient evidence to show her misconduct was mitigated by her post-traumatic stress disorder (PTSD). In her supporting documents considered by the Board were service medical and treatment records that provide proof of her abuse by her husband as early as June 1990 through 20 December 1990, which is up to the date of the misconduct and beyond. c. Her mental health records from June – 20 July 1990 reflect the closest case dates to her misconduct, which substantiate that her husband, Specialist (SPC) , was the abuser and the incident of misconduct was the fault of her husband. Her command was fully aware of his abusive behavior and did nothing. She would like her rank reinstated with pay, if any. d. She previously requested removal of the DA Form 2627 from her second nonjudicial punishment (NJP) under Article 15 of the UCMJ and the Board stated there is no evidence of a second DA Form 2627. She was promoted to SSG in on 1 February 1994 and demoted to SGT in February 1999. Her last DA Form 2166-7 (Noncommissioned Officer Evaluation Report (NCOER) shows her demotion to SGT. There is no documentation to show she received NJP under Article 15 during the period from 1994 through 1999, but the proof of her reduction is in her NCOER, which shows the reduction with forfeiture of pay. e. This is not to be confused with the NJP under Article 15 she received in Portugal in 1990. She requested that one be moved to her Restricted file because of the sergeant first class (SFC)/E-7 promotion board in 1998. There is no documentation of the NJP under Article 15 which reduced her to SGT in 1998-1999, but she was immediately reduced because of a positive urinalysis. How could she have been reduced without any documentation? She would also like that rank reinstated with monetary benefits. f. Her record is unjust because her record shows exemplary service until her last 6 months of service with a positive urinalysis and the wrongful possession and distribution of marijuana, which is the reason she was discharged. She included a letter to the Board explaining the events leading up to her discharge and is going to enclose a Criminal Investigation Division (CID) investigative misconduct summary, dated 25 February 1999, which was not originally a part of her Board supporting documents. g. To participate in this form of misconduct was not in her character. If she were in her right mind, this would have never happened. In accordance with the Hegel, Carson, Carter, and Wilke memoranda requiring liberal consideration, she continues to request that her discharge be fully upgraded to honorable, her rank restored to SSG and her reason for separation be changed to reflect medical retirement. The basis for these changes should be physical disability resulting from then undiagnosed PTSD. h. This is not the only reason for her request for medical retirement. During her last 6 years of service, she was limited to light duty with limited equipment. She could not wear a Kevlar helmet, or a rucksack and she took an alternate Army Physical Fitness Test (APFT) due to her permanent P3 physical profile. Under normal circumstances, Soldiers receive medical and dental examinations at the time of discharge, but she did not receive either. i. She wants her rank reinstated without prejudice. If an upgrade is granted, that means the Board has forgiven her based on the liberal consideration of PTSD. That means she should have her rank restored and the misconduct forgiven. However, by leaving “in lieu of trial by court-martial” on her DD Form 214, that shows she is not forgiven and therefore it is not really an upgrade to general, under honorable conditions. Had she been diagnosed with PTSD, she would have received an honorable discharge with her rank intact. 3. The applicant enlisted in the Regular Army on 12 September 1984. 4. Military Traffic Management Command Orders 36-4, dated 18 April 1990, promoted the applicant in rank/grade from specialist (SPC)/E-4 to SGT/E-5 effective 1 May 1990. 5. The applicant provided multiple service treatment records with her last application, including the below referenced Standard Forms 600 (Chronological Record of Medical Care) dated from June – January 1991, all of which have been provided in full to the Board for review. These records show, in part: a. The applicant was treated on 6 June 1990, status post visible puncture wounds to her right ring finger and hand, the result of a human bite. b. The applicant and her service member spouse were seen at the Family Advocacy Program on 20 July 1990, to evaluate incidents of alleged spousal abuse. The physical confrontations usually consisted of verbal arguments resulting in the applicant’s husband becoming angry and explosive with his temper. He is then likely to hit the applicant in the face with an open hand. c. The applicant and her spouse were seen at the Family Advocacy Program on 24 August 1990, after referral by her unit for counseling for spousal abuse. The couple will start to have verbal arguments that escalate into the applicant’s husband hitting her with an open hand. The team decided to substantiate for physical spouse abuse and the case will continue as a mental health case. d. The applicant and her spouse were seen at the Family Advocacy Program on 11 January 1991. The couple were having an argument after lunch when the husband got out of the car and the applicant put the car in reverse and attempted to hit him. He then threw a rock at the driver’s side window, breaking the window. She proceeded to try to run him over with the car again when he reached inside the broken window and puller her arm out. She received cuts and a fracture to her arm. The couple was then currently in marital counseling, but progress was slow and the husband was staying in the dorms and beginning anger control counseling. The team decided to substantiate physical spouse abuse, dual perpetrators and the unit would get the wife in for anger control counseling as well. e. The applicant was seen at Mental Health Services on 16 January 1991 for a command directed mental status evaluation. She was unaware of this requirement and was too upset to continue; she was to return on 18 January 1991 to complete the formal Mental Status Evaluation. Her mental status was anxious and upset. Her diagnoses were occupational problem and marital problem. 6. The restricted folder of the applicant’s OMPF contains a DA Form 2627, which shows she accepted NJP under Article 15 of the UCMJ on 16 January 1991, for disorderly conduct in the Azores on 19 December 1990, of a nature to bring discredit upon the Armed Forces. The imposed punishment was reduction in rank/grade to SPC/E-4. 7. The applicant’s DA Form 2-1 (Personnel Qualification Record – Part II) shows she was demoted to the rank/grade of SPC/E-4 on 16 January 1991. 8. Headquarters, U.S. Army Armor Center and Fort Knox Orders 212-288, dated 30 July 1992, promoted the applicant from SPC/E-4 to SGT/E-5 effective 1 August 1992. 9. A Standard Form 513 (Consultation Sheet), shows the applicant was seen at the Community Mental Health Service on 2 November 1993, after recently arriving in Japan with adjustment problems. She indicated she experienced significant depression and stress, with no one to turn to for support and that she was generally not satisfied with life. 10. Headquarters, U.S. Army Japan/IX Corps Orders 16-7, dated 15 January 1994, promoted the applicant in rank/grade from SGT/E-5 to SSG/E-6 effective 1 February 1994. 11. A Standard Form 600 shows on 26 April 1994, the applicant was brought into the hospital by the Military Police and family advocacy representative after having been assaulted by her husband and struck repeatedly by a broken broom handle, resulting in broken bones to her forearms while blocking blows to her face. 12. The restricted folder of the applicant’s OMPF contains the following two documents: a. A self-authored memorandum from the applicant to the Department of the Army Suitability Evaluation Board (DASEB), dated 27 April 1997, shows the applicant requested transfer of NJP for misconduct in December 1990, in Azores wherein she was reduced in rank/grade from SGT/E-5 to SPC/E-4 from the performance folder of her OMPF to her restricted folder. She believed the intended purpose of the document had already been served and its presence in the Performance Folder of her OMPF could restrict her potential to serve the Army in a higher capacity and be a discriminatory matter int eh DA selection board process. Note the applicant signed the memorandum with the rank SSG. b. A DASEB memorandum, dated 22 September 1997, advised the applicant the DASEB deliberated on a petition to transfer one record of NJP from the performance portion of her OMPF to the restricted portion and approved the request to transfer the NJP dated 15 January 1991, along with a copy of this memorandum, to the restricted portion of her OMPF. The transfer was based upon intent having been served. Note the memorandum refers to the applicant in the rank of SSG. 13. The complete facts and circumstances surrounding the applicant’s demotion from SSG/E-6 to SGT/E-5 sometime in or around 1998 are unknown. A review of the applicant’s available service records shows they do not contain a DA Form 2627 dated in or around 1998, nor do they contain corresponding orders demoting her in rank/grade from SSG/E-6 to SGT/E-5. 14. A Standard Form 600, dated 24 August 1998, shows the applicant was seen at Divisional Mental Health, Central Diagnostic and Referral Facility, Fort Campbell, KY, where she was administered a standard Mental Status Examination. This Mental Status Examination is not in the applicant’s available records for review. 15. The applicant’s NCOER covering the period from February 1998 through January 1999, shows the following: a. Her rank was SGT and her date of rank was 1 October 1998. b. She received a “Needs Improvement” rating from her Rater in Leadership and Responsibility & Accountability, including the following comments: * failed to lead by example * personal activities undermined the unit’s objectives for good order and discipline * positive results on urinalysis test c. Her overall performance and potential was rated by her Rater as “Marginal” and her Senior Rater bullet comments include the following: * positive urinalysis demonstrates poor judgement * failed to set a proper example for junior Soldiers * assign to positions of minimum leadership responsibility d. Her Senior Rater rated her overall performance as “4/Fair” and her overall potential for promotion as “5/Poor.” 16. The complete facts and circumstances surrounding the applicant’s discharge are not in her available records for review. Her available service records do not contain a DD Form 458 (Charge Sheet) indicating the charges preferred against her which authorized the imposition of a bad conduct or dishonorable discharge. 17. The restricted folder of the applicant’s OMPF contains the following two documents: a. A memorandum from the Office of the Staff Judge Advocate, Headquarters, 101st Airborne Division (Air Assault), dated 10 March 1999, requesting the U.S. Army Enlisted Records and Evaluation Center (USAREC) provide duly authenticated copies of the applicant’s OMPF microfiches including copies of any documents reflecting adverse personnel actions contained in the restricted fiche. The documents requested were to be used in court-martial proceedings. b. A memorandum from the USAREC Deputy Commander, dated 23 March 1999, provided the requested records from the applicant’s restricted portion of her OMPF to the Office of the Staff Judge Advocate, Headquarters, 101st Airborne Division (Air Assault), for the purpose of court-martial action. 18. A self-authored memorandum, dated 30 March 1999, shows the following: a. The applicant voluntarily requested discharge in lieu of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. She acknowledge she may request discharge in lieu of court-martial because of the charges that had been preferred against her under the UCMJ, at least one of which authorized the imposition of a bad-conduct or dishonorable discharge. b. She acknowledged making this request of her own free will, without being subjected to coercion, and having been advised of the implications attached to it. By submitting this request for discharge, she acknowledged she understood the elements of the offenses and was guilty of at least one of the charges against her or at least one lesser included offense therein, which authorized the imposition of a punitive discharge. c. She was afforded the opportunity to consult with appointed counsel, who fully advised her of the nature of her rights under the UCMJ, the elements of the offenses with which she was charged, the possible defenses available to her and the maximum punishment if found guilty. She understood if her request for discharge were accepted, she may be discharged under conditions other than honorable. She was advised of and understood the possible effects of an under other than honorable conditions discharge and that she may be ineligible for many or all benefits and expect to encounter substantial prejudice in civilian life. d. She was advised of her right to submit statements in her own behalf which would accompany her request for discharge, but did not submit statements in her own behalf. 19. On 19 April 1999, the approval authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He directed her discharge under other than honorable conditions and her reduction in rank/grade to private (PV1)/E-1. 20. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the following: a. She was discharged under other than honorable conditions on 19 May 1999, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court- martial; she received a separation code of "KFS" and a reentry code of "3." b. She was credited with 14 years, 8 months, and 8 days of net active service. c. Among the decorations and medals she was awarded or authorized are the Army Commendation Medal (3rd Award), Army Achievement Medal (2nd Award), and the Army Good Conduct Medal (4th Award). d. Her rank/grade is reflected as PV1/E-1 with a date of rank of 29 April 1999. 21. A Physical Profile (DA Form 3349) is used to classify a Soldier’s physical disabilities in terms of six factors or body systems, as follows: “P” (Physical capacity or stamina), “U” (Upper extremities), “L” (Lower extremities), “H” (Hearing), “E” (Eyes), and “S” (Psychiatric) and is abbreviated as PULHES. Each factor has a numerical designation: 1 indicates a high level of fitness, 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. a. The applicant’s available service records do not contain a Physical Profile and she has not provided a copy. b. The applicant’s available service records do not show: * she was issued a permanent physical profile rating * she suffered from a medical condition, physical or mental, that affected her ability to perform the duties required by her MOS and/or grade or rendered her unfit for military service * she was diagnosed with a medical condition that warranted her entry into the Army Physical Disability Evaluation System (PDES) * she was diagnosed with a condition that failed retention standards and/or was unfitting 22. A Department of Veterans Affairs (VA) Rating Decision, dated 17 February 2004, shows the applicant was granted the following service-connected disability ratings: * depressive disorder, 10 percent, effective 20 January 2003 * status-post discectomy and anterior fusion, cervical spine at C5-C6 with arthritis, increased to 20 percent effective 30 January 2003 * neurological symptoms in the left upper extremity associated with status-post discectomy and anterior fusion, cervical spine at C5-C6 with arthritis, 10 percent from 30 January 2003 * scar, status-post right hip donor site associated with status-post discectomy and anterior fusion, cervical spine at C5-C6 with arthritis, 0 percent effective 20 May 1999 * residuals of recto-vaginal fistula (due to episiotomy), o percent effective 1 June 2001 * residuals of fracture to the left 4th metacarpal, o percent, effective 30 January 2003 23. In October 2007, the applicant applied to the Army Discharge Review Board (ADRB), requesting, upgrade of her discharge under other than honorable conditions. On 13 December 2007, the ADRB denied the applicant’s request for discharge upgrade, determining there were no mitigating factors that would merit an upgrade to her discharge and that her reason for discharge and characterization of service were both proper and equitable. 24. In September 2007, the applicant applied to the ABCMR requesting, in effect, restoration of her rank/grade to SGT/E-5, stating her punishment was too extreme and her misconduct was the result of PTSD induced by her husband’s physical abuse. On 21 February 2008, the Board denied the applicant’s request, determining the evidence presented did not demonstrate the existence of a probable error or injustice and the overall merits of the case were insufficient as a basis for correction of the applicant’s records. 25. The applicant again applied to the ABCMR in November 2020, requesting, in effect, the removal of two counts of NJP from her OMPF, upgrade of her discharge under other than honorable conditions, and medical retirement with corresponding amendment to her narrative reason for discharge and backpay. a. In the adjudication of her application, a medical review was conducted by the Army Review Boards Agency (ARBA) medical advisor, who determined there was no evidence of record the applicant’s service-connected major depressive disorder, which was diagnosed post-service, fell below the retention standards of Army Regulation 40-501 (Standards of Medical Fitness) while in the service, requiring a physical disability discharge or retirement. Under the liberal consideration guidance, this is however considered a mitigating behavioral health condition with regard to the characterization of her service. b. On 6 January 2022, the Board granted the applicant’s request for upgrade of her discharge to general, under honorable conditions. The remaining requests were denied as the Board determined the evidence presented did not demonstrate the existence of a probable error or injustice and the overall merits of those portions of the case were insufficient as a basis for correction of the applicant’s records. c. The applicant’s original DD Form 214 was voided and on 31 July 2022, she was issued a new DD Form 214, reflecting her general discharge under honorable conditions on 19 May 1999, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. The reissued DD Form 214 shows her rank/grade PVT/E-1. 26. The applicant provided argument or evidence that the Board should consider in accordance with the published equity, injustice, or clemency determination guidance. 26. 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 Interactive Personnel Electronic Records Management System (iPERMS), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). This case is a request for reconsideration with multiple requests. This medical review will focus on her request for a next level upgrade in characterization of service to Honorable and request for change in discharge to physical disability retirement. Her characterization of service was previously upgraded from Under Other Than Honorable Conditions to Under Honorable Conditions, General under Liberal Consideration in 2022. She states that the basis for her request is undiagnosed PTSD and other unnamed condition(s). She contends that the last 6 years of service she was on limited to light duty. The applicant also contends that she did not wear Kevlar helmet or rucksack and she took an alternate physical fitness test. And finally, she argues that she had a permanent P3 profile. b. The applicant’s record was summarized in the ABCMR ROP. Of note, she entered active duty for the Regular Army 12Sep1984. Her MOS was 88N01 Traffic Management Coordinator. She had two non-combat overseas deployments. She was discharged 19May1999 under provisions of AR 635-200, chapter 10 in lieu of trial by court-martial. The specific charges related to her discharge were not documented in the available records; however, the record contained a disorderly conduct offense dated 19Dec1990 and a positive urinalysis was noted in her NCO Evaluation Report covering the period from February 1998 and January 1999. c. JLV search today showed the applicant was service connected by the VA for the conditions listed below. These were reviewed due to their higher rating and potential for being considered medically unfitting: Major Depressive Disorder at 50%; Paralysis of All Radicular Nerve Groups at 40%; Paralysis of All Radicular Nerve Groups at 30%; and Spinal Stenosis at 30%. d. Behavioral Health (BH) Condition The applicant was service connected by the VA for Depressive Disorder at 50% effective 30Jan2003 per 27Feb2004 VA Rating Decision. She was diagnosed with Depressive Disorder in January 2004. The applicant also claimed PTSD from physical abuse by her husband: A 06Jun1990 USAF Hospital note documented a human bite (puncture wounds right ring finger). It was noted that on 20Jul1990 the husband admitted to physically assaulting the applicant. The applicant states that her husband’s verbal and physical abuse predated the incident on 19Dec1990 when she allegedly attempted to run over him with the car. The applicant sustained significant injuries from her spouse during this incident (arm lacerations and a broken finger). She states that Command was aware of the history of abuse; however, she was given an Article 15 for disorderly conduct for the 19Dec1990 altercation (later transferred to restricted access on appeal). In addition to substantiating her claim for spousal abuse and his need for anger management, Family Advocacy Program (FAP) recommended anger management for the applicant also (11Jan1991). Despite intervention, in April 1994 the applicant sustained significant injuries from her husband beating her with a broomstick with some blows landing on her face and head. While in military service, in addition to anger, the applicant endorsed general dissatisfaction with life, significant depression, and stress (01Oct1993 Community Mental Health Record). The in-service record contained mental health counseling and FAP notes from July 1990 through March 1991. She also participated in marital counseling and anger management. Available mental health diagnoses included in-service diagnoses Occupational Problem and Marital Problem. The applicant had been command directed for Mental Status Evaluation (MSE) after the 19Dec1990 incident, and she underwent a MSE on 24Aug1998; however, reports for these examinations were not included in the submitted records. She indicated that while in service she self-medicated with drugs. e. Rationale/Opinion The record showed the applicant endured severe marital conflict with significant physical abuse documented while in service. It was noted during the final rating period (199802 to199901), the senior rater selected that the overall potential for promotion and/or service in positions of greater responsibility was marginal. The reason for the less than favorable rating was related to a positive urine drug test. The available in- service record was silent for use of psychotropic agents, rehab counseling, profiling, or requiring work accommodations due to mental health symptoms. The record was also silent for suicide attempts and psychiatric hospitalization. Based on records available for review, evidence was insufficient to support that the applicant’s BH condition failed medical retention standards or AR 40-501 chapter 3 at the time of discharge. f. Cervical Degenerative Joint and Disc Disease; Cervical Radiculopathy Records that were submitted showed the applicant was granted service connection for the Status Post Diskectomy and Anterior Fusion, Cervical Spine at C5-C6 with Arthritis condition at 10% effective 20May1999. This was increased to 20% effective 30Jan2003. She also received a rating for Left Upper Extremity Neurological Symptoms related to the cervical spine condition at 10% effective 30Jan2003. JLV search today showed the applicant subsequently received a rating for right upper extremity nerve symptoms. In-service treatment records showed that on 02Dec1992, the applicant was transferred by ambulance to a civilian hospital from Ireland ACH for Herniated C5 and C6 discs with Cord Compression. On 07Dec1992, she was returned to military control status post anterior fusion of C5 and C6 and bone graft. There were no other in-service records that were available for review which directly addressed the status of the cervical spine condition while she was in service. Two years after service, the applicant presented with a complaint of 10 out of 10 neck and right hip pain not responsive to Motrin. 23Mar2001 cervical films showed mild to moderate degenerative changes involving C4-5 and C6-7. There was no report of radiation of neck pain. The exam showed a supple neck. Neuro and musculoskeletal exams were normal. g. Rationale/Opinion NCO Evaluation Report covering the period from February 1998 through January a1999 showed the applicant passed the June 1998 APFT, six years after her cervical spine surgery. Other than what might be presumed for necessary convalescence, the record was silent for profiling for this condition. The record was also silent for consultation with orthopedics, pain or physical therapy consultation. Based on records available for review, evidence was insufficient to support that the applicant’s cervical spine condition or related bilateral upper extremity nerve symptoms failed medical retention standards or AR 40-501 chapter 3 at the time of discharge. h. In the ARBA Medical Reviewer’s opinion, referral for medical discharge processing is not warranted at this time. Concerning the request for further discharge upgrade to fully Honorable, the applicant was diagnosed with Major Depressive Disorder (MDD) and her self-assertion of PTSD alone is sufficient under Liberal Consideration to merit consideration of upgrade by the Board. The applicant’s MDD and PTSD conditions are mitigating for the known offenses (substance use and disorderly conduct) documented in her record under Liberal Consideration guidelines. However, it should be noted the charge sheet listing the specifications which served as the basis for her discharge in lieu of court-martial, was not available for review. Therefore, no statements can be made regarding whether the applicant’s BH condition(s) specifically mitigate the offenses which directly led to her discharge. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not 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. Upon review of the applicant’s petition, available military records and the medical review the Board concurred with the advising official finding insufficient evidence to support the applicant’s cervical spine condition or related bilateral upper extremity nerve symptoms failed medical retention standards at the time of discharge. The Board noted that referral for a medical discharge processing is not warranted based on the opine. The Board considered the opine review finding sufficient under liberal consideration to merit consideration of upgrade by the Board. 2. The Board found insufficient evidence to support the applicant’s contentions for retroactive pay and benefits. The Board determined the applicant was promoted and demoted several times throughout her career. The Board found the applicant on 19 April 1999, accepted a chapter 10, in lieu of trial by court-martial and was discharge with an under other than honorable conditions and her reduction in rank/grade to private (PV1)/E-1. Based on the evidence, the Board agreed the applicant’s record is absent any additional supporting documentation that warrants reinstatement of her rank/grade from sergeant (SGT)/E-5 to staff sergeant (SSG)/E-6 and/or her rank grade from private (PVT)/E-1 to SGT/E-5. Further, evidence shows the applicant’s character of service was upgraded from a previous ABCMR Board proceeding to a general under honorable conditions. 3. The Board determined the applicant did not demonstrate by a preponderance of evidence that procedural error occurred that was prejudicial to the applicant. The Board noted that removal of an Article 15/ UMCJ is generally not warranted unless it is factually incorrect. It was noted by the Board the complete facts and circumstances surrounding the applicant’s demotion from SSG/E-6 to SGT/E-5 sometime in or around 1998 are unknown. A review of the applicant’s available service records shows they do not contain a DA Form 2627 dated in or around 1998, nor do they contain corresponding orders demoting her in rank/grade from SSG/E-6 to SGT/E-5. The Board can not make a recommendation for removal for actions not in the applicant’s records. Based on the preponderance of evidence the Board determined reversal of the previous Board determination is without merit and denied relief. 4. This board is not an investigative body. The Board determined despite the absence of the applicant’s separation records, they agreed the burden of proof rest on the applicant, however, she did not provide any supporting documentation and her service record has insufficient evidence to support the applicant contentions a discharge upgrade, retroactive pay and removal of Article 15, Uniform Code of Military Justice (UCMJ)), on or about 20 December 1990 from her records. 5. 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 equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest 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 Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR20070015221 on 21 February 2008 and Docket Number AR20210005903 on 6 January 2022. 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. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. 2. 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/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 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 grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs 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. 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. 3. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system (DES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 (Discharge Review Board (DRB) Procedures and Standards) and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a Medical Evaluation Board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (MOS) Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and Physical Evaluation Board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 4. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. c. The percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 5. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 6. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. 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. c. 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. d. A discharge under other than honorable conditions (UOTHC) is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. 7. Army Regulation 27-10 (Military Justice) states a commander’s decision on whether to file a record of nonjudicial punishment (NJP) in the performance portion of a Soldier’s Official Military Personnel File (OMPF) is an important as the decision where to impose the NJP itself. If the commander who imposed the NJP, his/her successor in command, or superior authority wholly sets aside the punishment on the basis that evidence exists which demonstrates that the punishment resulted in a clear injustice, then the record of NJP is removed from the OMPF. 8. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribes the enlisted promotions and reductions function of the military personnel system. It shows Soldiers approved for discharge from the service under other than honorable conditions under the provisions of Army Regulation 635-200 will be reduced to the rank/grade of private/E-1. 9. Title 38, U.S. Code, section 1110 (General – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 10. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 11. Title 10, U.S. Code, section 1556 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. 12. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. a. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. b. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003481 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1