IN THE CASE OF: BOARD DATE: 24 January 2024 DOCKET NUMBER: AR20230006218 APPLICANT REQUESTS: Upgrade of her under honorable conditions (general) discharge. Additionally, she requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * County Assessor Decision Letter * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Veterans Affairs (VA) summary of benefits letter 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 she was a single parent while in the Army. She had no misconduct problems while she served. Shortly before her deployment overseas, she discovered that her mother, who was taking care of her year-old son, was an alcoholic. She could not leave her son. Because her discharge states "Under Honorable Conditions,” she cannot receive Homestead Exemption for Veterans with disabilities. Her unit at Fort Campbell, KY, was riddled with sexual harassment for all the women who lived in the barracks. She moved off base because of the widespread sexual harassment. She is very proud of her time in service. 3. On her DD Form 149, the applicant notes sexual assault/harassment issues are related to her request. 4. On 10 April 1987, the applicant enlisted in the Regular Army for four years. Upon completion of training, she was awarded military occupational specialty 93C (Air Traffic Control Operator). 5. The applicant received formal counseling on 21 November 1990, and was directed to complete a family care plan and name a long-term child provider to qualify for deployment. 6. The applicant's commander notified her on 31 January 1991, that he was initiating actions to separate her under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 5, Section IV, paragraph 5-8 due to parenthood. As the specific reasons, her commander cited that the applicant had failed to maintain an adequate family care plan. 7. The applicant acknowledged that she had been advised by counsel of the contemplated separation action, the possible effects of the discharge, and the rights available to her. She indicated she understood she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to her. She declined the opportunity to consult with counsel and to submit a statement in her own behalf. 8. The applicant's commander formally recommended her separation under the provisions of Army Regulation 635-200, Chapter 5, Section IV, paragraph 5-8 due to parenthood. 9. Consistent with the chain of command's recommendation, the separation authority approved the recommended discharge, with her service characterized as under honorable conditions (general). 10. The applicant was discharged on 28 February 1991. Her DD Form 214 confirms she was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-8, for inability to perform prescribed duties due to parenthood. Her service was characterized as under honorable conditions (general). She was assigned Separation Code LDG and Reentry Code 3. She completed 3 years, 10 months, and 19 days of net active service this period. 11. The applicant petitioned the Army Discharge Review Board requesting upgrade of her service characterization. On 29 September 1995, the Board voted to deny relief and determined her discharge was both proper and equitable. 12. In the processing of this case, a search of the Criminal Investigation Division database was requested for a Report of Investigation and/or Military Police Report pertaining to the applicant. The search revealed no records pertaining to the applicant 13. The applicant provides the following (provided in entirety for the Board): a. A letter from the County Assessor’s Office that shows her application for Homestead Exemption for Veterans with Disabilities was denied because her discharge status did not reflect honorable. b. VA summary of benefits letter that shows her combined service-connected evaluation rating is 100 percent. 14. In reaching its determination, the Board can consider the applicant's petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 15. MEDICAL REVIEW: a. Background: The applicant is requesting that her Under Honorable Conditions discharge be upgraded to Honorable due to experiencing an MST and ongoing sexual harassment during her time in service. She claimed, “her unit at Fort Campbell, KY, was riddled with sexual harassment for all the women who lived in the barracks. She moved off base because of the widespread sexual harassment.” 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 10 Apr 1987. Her awards included the Army Achievement Medal (1st OLC), Good Conduct Medal and Army Service Ribbon. Her occupational specialty was Air Traffic Control Operator. * On 31 Jan 1991, the commander noted, “I am initiating action to separate you involuntarily due to parenthood. The reasons for my proposed action are: failure to maintain an adequate Family Care Plan.” * Applicant indicated being “advised by counsel of the contemplated separation action, the possible effects of the discharge…She declined the opportunity to consult with counsel and to submit a statement in her own behalf” (31 Jan 1991). * The applicant’s separation packet is available for review. In addition, the applicant’s service record includes her DD Form 214 (Report of Separation from Active Duty), which shows that the Army discharged the applicant Under Honorable Conditions (General) on 28 Feb 1991. c. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed .DD Form 149, her ABCMR Record of Proceedings (ROP), Personal Statement, her DD Form 214, as well as documents from her service record. The VA electronic medical record and DOD health record were reviewed through Joint Longitudinal View (JLV). d. This applicant asserted that an MST and sexual harassment were mitigating factors in her discharge. Her service record and supporting documents did not provide any documentation to support her claim of an MST and sexual harassment. Based on this documentation, there is a lack of evidence the applicant was diagnosed or treated for mitigating condition(s) that occurred during her time in service. e. Per the applicant’s VA EHR, she is 100% service connected for medical and behavioral health concerns with 70% for “Neurosis, Generalized Anxiety Disorder.” Between Dec 2018 and Nov 2023, JLV identifies 17 behavioral health entries in the Outpatient Encounters section with a primary focus on pain management. f. In summary, applicant is service connected at 70% for Generalized Anxiety Disorder. While documentation was lacking in the VA encounter notes (JLV) to support the contention that the applicant had experienced MST(s) during her time in service, under liberal consideration, applicant’s self-assertion of MST and sexual harassment is sufficient to establish occurrence of MST. Consequently, after reviewing the application and all supporting documents, it is the opinion of this Agency Medical Advisor that there is sufficient evidence of mitigating conditions, Generalized Anxiety Disorder/MST, that significantly contributed to the specific misconduct of substandard duty performance related to maintenance of a family care plan. Adequate documentation was provided in the VA encounter notes (JLV) to support the contention that the applicant had experienced Generalized Anxiety Disorder during her time in service along with her self- reported MST and sexual harassment. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge. Yes, she experienced Generalized Anxiety Disorder (GAD)/MST contributing to her substandard performance (inadequate family care plan) while still on active duty - GAD having been diagnosed by VA behavioral healthcare providers. (2) Did the condition exist or experience(s) occur during military service? Yes, there is considerable evidence she had a condition of Generalized Anxiety Disorder (per SC disability at 70%) while on active duty that more likely than not was worsened by MST(s) and sexual harassment. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes, it mitigates for her misconduct of substandard duty performance (inadequate family care plan) as Generalized Anxiety Disorder/MST and sexual harassment are often associated with poor concentration, decreased work performance and avoidant behavior. In accordance with ARBA policy regarding MST and liberal consideration, it is recommended that the applicant’s narrative reason for discharge 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 carefully considered the advising official finding sufficient evidence of mitigating conditions, Generalized Anxiety Disorder/MST, that significantly contributed to the specific misconduct of substandard duty performance related to maintenance of a family care plan. The Board noted the opine found lacking documentation in the VA encounter notes (JLV) to support the contention that the applicant had experienced MST(s) during her time in service. The Board however, determined there is insufficient evidence to warrant an upgrade of the applicant’s discharge. The applicant understood the regulatory guidance and acknowledged acceptance regarding the requirements for a family care plan as a single Soldier. Evidence shows the applicant made no attempt to facilitate getting her family care plan in order as her unit was preparing for deployment to the Persian Gulf. 2. The Board determined the applicant provided insufficient evidence of post service achievements or character letters of support that could attest to her character for the Board to weigh a clemency determination. Further, 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 GAD due to MST; the Board carefully considered this factor. However, based on the evidence of the applicant’s failure to maintain regulatory guidance to have a family care plan, the Board determined that the character of service the applicant received upon separation was not in error or unjust. Therefore, the Board denied relief. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and 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 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 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 states 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. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. Army Regulation 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 5-8 provided for the discharge of enlisted personnel when parental obligations interfere with fulfillment of military responsibilities. Specific reasons for separation because of parenthood include inability to perform prescribed duties satisfactorily, repeated absenteeism, late for work, inability to participate in field training exercises or perform special duties, and nonavailability for worldwide assignment or deployment according to the needs of the Army. Individuals discharged under this provision of the regulation were issued either a general or honorable discharge. 5. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Navy Records (BCM/NR), on 3 September 2014, to carefully consider the revised post-traumatic stress disorder (PTSD) criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 6. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, 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 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. 7. 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) AR20230006218 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1