IN THE CASE OF: BOARD DATE: 20 December 2023 DOCKET NUMBER: AR20230005088 APPLICANT REQUESTS: upgrade of her under honorable conditions (general) discharge, and the reason for separation be changed to Secretarial Authority. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Attorney Letter * Attorney Brief * Exhibit 1-Self-Authored Statement * Exhibit 2-Certificate of Merit * Exhibit 3-DD Form 214 (Report of Separation from Active Duty) * Exhibit 4- Certificate of Achievement * Exhibit 5-DD Form 2-1 (Personnel Qualification Record (two pages) * Exhibit 6-Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ) * Exhibit 7-Statement in Support of claim * Exhibit 8-Department of Veterans Affairs (VA) Letter * Exhibit 9-DVA Medical Opinion * Exhibit 10-Commander Notification Letter * Exhibit 11-Information Regarding Kurta Memorandum * Exhibit 12-Applicant Acknowledgment of Notification of Proposed Discharge FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, Section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states because her application is based on service-connected post- traumatic stress disorder (PTSD) and military sexual trauma (MST) her application is entitled to liberal consideration. Her service-connected PTSD and MST explain and mitigate the one-time drug use that led to her discharge. Her exemplary service outweighs the circumstances that led to her discharge. She may not have received appropriate due process before her discharge. The Kurta memorandum sets forth broad leeway for reviewing cases that involve MST and mental health related claims. 3. The applicant provides: a. A self-authored statement dated 12 October 2022, in which she states enlisted and did exceedingly well in basic training and graduated at the top of her training company and was handpicked to join the Military Police. She was stationed at Fort Carson, CO. One day she went for a motorcycle ride up Pike’s Peak with a male Soldier she had just med. They drank alcohol, the altitude and the motorcycle ride made her start to feel sick and dizzy. They returned to her apartment that she shared with two other women, but neither was around when they got there. He took advantage of this situation and sexually assaulted her. She never spoke to him again. She decided not to report the rape. She feared somehow, she would be blamed for the assault, especially with the drinking. She had anxiety levels off the charts, and she was afraid of seeing that man again or being assaulted by someone. Around this time, she drank alcohol and smoked some marijuana, it was the only thing that relaxed her and relieved some of her stress. b. She was drug tested and received an Article 15 for marijuana use in April 1976. She was stationed in Korea where a male Soldier, Sergeant First class (SFC)/E-7 thought she was a lesbian along with her friend and made disparaging remarks. SFC told her that her reputation preceded her. He threatened to have the applicant arrested within five months. At a friend’s apartment she was arrested for a roach of marijuana about half an inch long, which was found under the bed. Members of her command that were involved in the disciplinary action told her that she had no recourse, especially since she had a previous charge for marijuana, and that she would be incarcerated in Leavenworth Prison and given a dishonorable discharge if she did not cooperate with them. This was horrifying to her. She really believes that SFC made good on his threat to have her arrested. c. She often has panic attacks and outbursts of anger and frustration, along with intense perfectionism. She feels a deep sense of betrayal over how the military treated her that makes it difficult to do even small tasks. She has a 100 percent (%) disability rating from the VA for PTSD, and he has had to consistently seek mental health treatment over the years to manage her symptoms. Though she is no longer able to work she does have hobbies. d. A recent accomplishment that she is very proud of is that while she was in Uganda photographing wildlife, she discovered a nonprofit that provides goats to poor families in villages, so that they can have a source of milk, meat, and possible income. She gladly purchased some goats for this nonprofit to provide to women in the village, and she convinced several friends to donate goats as well. So far, she has procured 35 goats to help sustain families in Africa. 4. Counsels states: a. Because the applicant's application is based on service-connected PTSD and MST, her application is entitled to liberal consideration; her service-connected PTSD and MST explain and mitigate the one-time drug use that led to her discharge; her exemplary service outweighs the circumstances that led to her discharge; she may not have received appropriate due process before her discharge and the second marijuana charge may have been pretext due to the applicant’s perceived sexuality. b. The applicant’s service was laudable. She suffered a sexual trauma which severely damaged her mental health and then endured insults and harassment for her perceived sexual orientation. This ongoing trauma ultimately affected her ability to continue to function during service. That she was discharged with a characterization that in effect reduces her service to her PTSD, without due regard to her valor and self- sacrifice, is an injustice. Indeed, when her many contributions to the Army-including leading Military Police operations weighed against her one marijuana charge consequent to an instance of self-medication, the balance is clear. The one minor charge pales in comparison to the applicant's over two years of exceptional service and the many ways she has worked to make a positive impact since leaving the military. In the interest of justice, a correction to an honorable discharge is warranted to accurately reflect her service. 5. The applicant enlisted in the Regular Army on 11 November 1974 for three years. Her military occupation specialty was 95B (Military Policeman). 6. The applicant served in Korea from 26 May 1976 through 23 November 1976. 7. The applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 23 April 1976 for wrongfully using marijuana on or about 22 April 1976. Her punishment consisted of extra duty, restriction, forfeiture of $108.00 and reduction to private first class/E-3 (suspended). 8. The applicant was notified by her immediate commander that actions were being initiated to discharge her under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), paragraph 5-37, Expeditious Discharge Program (EDP), with a general discharge. As reasons for the proposed separation, her commander cited that in the last few months the applicant had displayed difficulty maintaining self-discipline and was unable to adjust to military life. On 17 September 1976, she was apprehended by Military Police for use of marijuana. 9. The applicant acknowledged notification of the proposed discharge on 11 November 1976 and voluntarily consented to discharge from the Army. She consulted with counsel and acknowledged that she may expect to encounter substantial prejudice in civilian life if she were issued a general discharge. She waived her right to submit a statement in her own behalf. 10. The applicant’s commander forwarded the action for disposition and the approval authority approved the recommended discharge on 12 November 1976, with the issuance of a General Discharge Certificate. 11. The applicant was discharged on 24 November 1976. Her DD Form 214 shows she was discharged under the provisions of AR 635-200, paragraph 5-37, with Separation Program Designator JGH (failure to maintain acceptable standards for retention) and Reenlistment Code 3. Her service was characterized as under honorable conditions (general). She completed 2 years and 14 days of net active service. 12. The applicant provides: a. An attorney letter that states the applicant is currently diagnosed with PTSD, which is connected to a sexual assault which occurred during her military service. As such, a physician, clinical psychologist, or psychiatrist must be included as a member of the board who reviews her application for relief. b. Exhibits 3, 5, 6, 10 and 12 discussed above. c. Exhibit 2-Certificate of Merit, dated 22 January 1975 shows the applicant was designated the outstanding trainee. d. Exhibit 4-Certificate of Achievement, from 11 November 1974 to 2 February 1976, in recognition of outstanding performance. e. Exhibit 7-Statement in Support of claim , dated 18 January 2020, states she encountered sexual discrimination while in the service. She rebuffed Sergeant Major . The applicant arrived in Korea and became her friend and ally, she became involved in the turmoil was suffering. She saved her from losing her sanity and gave , through her friendship, the strength to endure until the eventual end to their careers and hopes of lifelong service, forced upon them in exchange for freedom from SGM threats of impassioned persecution. She could hereby attest all that the applicant describes is absolutely true and correct to the best of her knowledge. f. Exhibit 8-VA letter, dated 3 December 2020, shows the applicant has a combined rating of 100% for PTSD, panic attacks, major depressive disorder, recurrent, moderate cannabis use disorder, mild. g. Exhibit 9-VA Medical Opinion, dated 1 February 2020, shows PTSD and MST. h. Exhibit 11-Information Regarding Kurta Memorandum, as discussed below. 13. Paragraph 5-37 provided for the discharge of enlisted personnel who had completed at least six months but less than 36 months of active duty and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army. Individuals discharged under this provision of the regulation were issued either a general or honorable discharge. 14. On 18 May 2023, in the processing of this case the U.S. Army Criminal Investigation Division, searched their criminal file indexes, which revealed no Criminal Investigative and/or Military Police Reports regarding Sexual Assault pertaining to the applicant. 15. In reaching its determination, the Board can consider the applicant’s petition and her service record in accordance with the published equity, injustice, or clemency determination guidance. 16. MEDICAL REVIEW a. Background: The applicant is requesting an upgrade of her under honorable conditions (general) discharge, and the reason for separation be changed to Secretarial Authority. She contends MST-related PTSD mitigates her discharge. 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 RA on 11 November 1974 and served in Korea from 26 May 1976 through 23 November 1976. * Applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 23 April 1976 for wrongfully using marijuana on or about 22 April 1976. * On 17 September 1976, she was apprehended by Military Police for use of marijuana. Applicant was notified by her immediate commander that actions were being initiated to discharge her under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), paragraph 5-37, Expeditious Discharge Program (EDP), with a general discharge. As reasons for the proposed separation, her commander cited that in the last few months the applicant had displayed difficulty maintaining self-discipline and was unable to adjust to military life. * Applicant was discharged on 24 November 1976. Her DD Form 214 shows she was discharged under the provisions of AR 635-200, paragraph 5-37, with Separation Program Designator JGH (failure to maintain acceptable standards for retention) and Reenlistment Code 3. Her service was characterized as under honorable conditions (general). c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed include the applicant’s completed DD Form 149, DD Form 214, legal brief, self-authored statement, statement in support from a fellow service member, VA decision letter, ABCMR Record of Proceedings (ROP), and 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 states her application is based on service-connected post-traumatic stress disorder (PTSD) and military sexual trauma (MST) and is entitled to liberal consideration. She reports her service-connected PTSD and MST explain and mitigate the one-time drug use that led to her discharge, and her exemplary service outweighs the circumstances that led to her discharge. In addition, she believes she may not have received appropriate due process before her discharge. e. The applicant reports that at her first duty station in Fort Carson, after finishing with her assigned duties, she went for a motorcycle ride and a drink with a male soldier. After the drink, she felt unwell and dizzy. When they returned to her apartment, her roommates were absent. The applicant laid on the floor and told the serviceman that she did not feel well. He ignored her pleas for him to stop and proceeded to climb on top of her and rape her. He then got up and left. She never spoke to him again. Nor did she report her assault. She was aware that sexual abuse was pervasive in the military, at the time, and that women had little defense, especially if they had been drinking. She felt embarrassed and did not want to endure exposure and ridicule on top of the rape, so she kept the incident to herself and attempted to cope and move forward on her own. In addition, while station in Korea, members of her command were involved in bullying, harassing, threatening, and making disparaging remarks to her, including accusing her of being a lesbian. She reports feeling a deep sense of betrayal over how the military treated her. f. Due to the period of service, no active-duty electronic medical records were available for review. However, the applicant is 100 % service-connected for MST- related PTSD and her VA electronic medical record indicates she has a long history of behavioral health services via the VA. g. Based on the information available, it is the opinion of the Agency Behavioral Health Advisor that there is sufficient evidence the applicant had an experience and subsequent behavioral health condition during military service that mitigates her discharge. 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 contends MST. (2) Did the condition exist or experience occur during military service? Yes, the applicant is 100% service-connected for PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant was discharged for wrongfully using marijuana while in military service. Given the nexus between MST-related PTSD and the use of substances to alleviate/cope with the symptoms of her behavioral health condition, the reason for her discharge is fully mitigated. In accordance with the ARBA policy regarding MST and liberal consideration, it is recommended the applicant’s character of service be upgraded to Honorable and her narrative reason be changed 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 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 notwithstanding the advising official finding sufficient evidence the applicant had an experience and subsequent behavioral health condition during military service that mitigates her discharge. The Board noted the applicant, as a miliary police Soldier who was apprehended for drug use is unacceptable conduct and her honorable period of service could not outweigh with her self-reporting of PTSD. The Board recognized the applicant did not report experiencing MST, and she is receiving service-connected disability for PTSD. However, the diagnosis of PTSD nor the experience of MST mitigates the offense of her as a military police for two-time drug use of marijuana. 2. The Board carefully considered the applicant’s post service achievements and her letters of support attesting to her character. However, the Board notwithstanding the advising opine, determined there is insufficient evidence of in-service mitigation to overcome the misconduct of drug use after being given a second chance to redeem herself. The applicant was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as she did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. 3. The Board understands many sexual assault victims do not report. However, when prepondering evidence, there are sometimes symptoms of MST displayed by victims prior to their separation. Personal MST statements provided to the VA are not always corroborated. The medical review did determine there is evidence of MST as the VA (without any evidence other than her statement) awarded her treatment for PTSD due to MST; the Board considered this factor. However, based on the evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. Therefore, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, Section 1552(b), provides that applications for correction 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, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 3. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 5-37 provided for the discharge of enlisted personnel who had completed at least six months but less than 36 months of active duty and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. No individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge. Individuals discharged under this provision of the regulation were issued either a general or honorable discharge. 4. AR 635-5, states, the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. a. Block 24 (Character of Service) characterization or description of service is determined by directives authorizing separation. b. Block 26 (Separation Code) Obtain correct entry from AR 635–5–1, which provides the corresponding separation program designator code for the regulatory authority and reason for separation. c. Block 27 (Reentry Code) AR 601–210 determines Regular Army reentry eligibility and provides regulatory guidance on Reentry Eligibility codes. d. Block 28 (Narrative Reason for Separation) is based on regulatory or other authority and can be checked against the cross reference in Army Regulation 635–5–1. 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. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230005088 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1