IN THE CASE OF: BOARD DATE: 16 December 2021 DOCKET NUMBER: AR20190012718 APPLICANT REQUESTS: upgrade of her discharge from an under other than honorable discharge to a general under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 20 May 2019 * Self-authored letter * Medical Records (Spouse) * Several academic transcripts * Several certificates of completion FACTS: 1. The applicant did not file within the three 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: a. She suffered from post-traumatic stress disorder (PTSD), and military sexual trauma (MST) that caused her to lose control. Due to the things that were happening and the stress, she could not hold herself together. She did not realize the stress she was dealing with until her husband’s death, and then she had a breakdown. b. The first rape she witnessed was during October – November 1980. She was in basic combat training at Fort Rucker, AL. A noncommissioned officer (NCO) put his hand in her and another female’s blouse. In 1981, a Korean national cab driver jumped over the seat of the car and told her he wanted to have sex. A black Soldier came out and pulled him off of her. In August 1981, at Camp Casey, Korea, three white men attacked her to show her what it was like to be with a white guy, the Military Police (MP) helped her but no report was made. c. In September – November 1982, Specialist W____ asked to come into her house to get away from the neighbor’s party. She let him into the house with her and her five- month old son. He said he heard that the child’s father was coming. He grabbed her and said he was going to have sex with her before her husband got there. He beat her up and raped her. She was black and blue and her jaw was swollen. d. In 1984, her Sergeant Major came from Fort Sill, OK, to check on her. He asked to take her to lunch and while in her car he kissed her on the mouth. This made her sick to her stomach because he was like a father to her. He told her that he wanted to have sex. She told him she was not interested. e. Her husband went with her to Germany and he worked nights at a club and a bar. One night he was acting weird and asked her for some money. Later he came back with the money and told her that he was a heroin addict. He went to jail in Germany and she had no involvement with what happened. Her husband getting in trouble caused her to be harassed at work. She lost control of herself, her home, and her husband. f. In July 2019, she was diagnosed with PTSD from her MST in 1982. She has no buddies from the military; there were few women when she joined. Due to her military service she has back and shoulder injuries, headaches, and stomach issues. It is hard for her to breathe from the broken nose due to her sexual attack. When she joined the U.S. Army her last name was B___, so they constantly made fun of her name. She has not been in trouble since she has been out of the military. She has tried to go back to school but she has gotten sicker and sicker. She found out that she is about to become paralyzed. She feels let down. g. She has provided a copy of her spouse's medical records in addition to several certificates of completion/training, copies of educational transcripts, and a college Dean’s List certificate. 3. Review of the applicant's service records shows: a. On 18 August 1980, the applicant enlisted in the Regular Army. She completed training and was awarded military occupational specialty 71D (Legal Specialist). She served in Korea from 24 February 1981 to 24 February 1982. b. On 21 July 1983, she reenlisted in the Regular Army and on 11 June 1985, she extended her enlistment for the service remaining requirement for an overseas tour. c. She served in Germany from 15 July 1985 to 5 July 1988. While in Germany, she reenlisted in the Regular Army on 24 March 1988. d. She was frequently counseled for a variety of infractions, including: * 1 November 1988, for missing physical training without an acceptable excuse * 9 November 1988, writing a dishonored check on 27 October 1988. * 30 December 1988, substandard appearance and attitude, disrespect to her superiors, job performance, and failure of her skilled qualification test (SQT) * 26 July 1989, deficiencies, conduct, and possible separation * 12 September 1989, lack of responsibility as an NCO and Battalion Legal NCO * 25 October 1989, failure to perform her duties in a timely and satisfactory manner. e. On 2 March 1989, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing her dishonored check, delinquent payments, low Skill Qualification Test (SQT) scores, substandard duty performance, indebtedness, and reluctance to repay. The applicant was provided with a copy of this bar and she submitted a statement in which she submitted a request for the bar to be disapproved. She stated: (1) The dishonored check was for $73.24. This was the only check that was dishonored. Her counseling shows that the check was paid. She made the payments directly to the credit union. There were no requirements to go through the Army Community Service office. (2) She was embarrassed by her score for the SQT; however, many of the scheduled training sessions were cancelled. She was never counseled for poor job performance. The counseling for improperly taking time off is wrong. Three statements are attached that support the fact that she was given time off. f. On 5 April 1989, a suspension of personnel favorable action (flag) was initiated on the applicant for failing the Army Physical Fitness Test (APFT). g. On 19 October 1989 the U.S. Army Criminal Investigation Division revealed that H_____ (applicant's spouse) wrongfully possessed and sold cocaine to a covert drug suppression team (DST) member on 10 October, 14 October, 18 October and 1 November 1989. The investigation further disclosed that the applicant possessed and sold cocaine to a covert DST member on 19 October 1989. Both subjects were apprehended on 21 November 1989, and a search authorization was executed on their living quarters. h. On 13 November 1989, the applicant was counseled on the decline of her duty performance, submitting a false statement on the theft of a rental vehicle to the military police and the inability for the rental company to get her assistance in settling damage claims to the rental vehicle. i. On 13 December 1989, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for on or about 19 October 1989 wrongfully distributing cocaine. Her punishment consisted of reduction to specialist/E-4, forfeiture of $541.00 for two months, 45 days of extra duty, suspended to be automatically remitted if not vacated on or before 18 February 1990. j. On 13 December 1989, the applicant's immediate commander notified the applicant of her intent to initiate separation action against her under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraphs 14-12b and 12c, for patterns of misconduct and abuse of illegal drugs. The commander recommended an under other than honorable conditions discharge and advised the applicant of her rights. k. On 14 December 1989, the applicant acknowledged receipt of her commander's intent to initiate separation action against her for commission of a serious offense and abuse of an illegal drug. She consulted with counsel who advised her of the basis for the contemplated action to separate her under AR 635-200, paragraphs 14-12b and 12c, and its effect; of the rights available to her; and the effect of any action taken by her in waiving her rights. She opted to make a statement on her own behalf. She acknowledged: * she understood the effect of any waiver of rights * she understood that she may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to her * she further understood that as the result of issuance of a discharge under other than honorable conditions she may be ineligible for many or all benefits as a veteran under Federal and State laws and that she may expect to encounter substantial prejudice in civilian life * she understood that, as the result of issuance of a discharge certificate/character of service which is less than honorable, she may make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, she realizes that consideration by either board does not automatically imply upgrading l. On 15 December 1993, the applicant's immediate commander initiated separation action against the applicant under paraagraph 14-12c of AR 635-200 for commission of a serious offense. She recommended an under other than honorable conditions discharge. m. On 19 January 1990, the separation authority approved her discharge under the provisions of AR 635-200, paragraph 14-12c, and directed the issuance of an under other than honorable conditions discharge for misconduct-abuse of illegal drugs. She was reduced to private/E-1. n. On 31 January 1990, the applicant was discharged. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged in accordance with chapter 14 of AR 635-200 (Personnel Separations) with an under other than honorable conditions character of service. Her DD Form 214 shows she completed 9 years, 5 months, and 13 days of active service. Her DD Form 214 shows: * Continuous honorable service 1980-08-18 to 1988-03-23 and her reenlistment dates * She was awarded or authorized: * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Sharpshooter Marksmanship Qualification Badge with Grenade Bar * Army Good Conduct Medal (2nd Award) * Overseas Service Ribbon (2) * NCO Professional Development Ribbon * Army Achievement Medal o. On 15 November 2000, the ADRB considered the applicant's request for an upgrade of her discharge. The ADRB carefully examined her record of service. There was a full consideration of all faithful and honorable service as well as infractions of discipline, the extent thereof, and the seriousness of the offenses. However, the evidence of record shows that the applicant was discharged under the provisions of Chapter 14, AR 635-200, for misconduct, commission of a serious offense (i.e., distribution of cocaine). The applicant, by violating the Army's policy not to possess, distribute, or use illegal drugs, compromised the special trust and confidence placed in a NCO. As an NCO she had the duty to support and abide by the Army's drug policies. By distributing illegal drugs, the applicant knowingly risked a military career and this misconduct diminished the quality of her service below that meriting a general or an honorable discharge. The ADRB, being convinced that the reason for discharge and the characterization of service were both proper and equitable, voted to deny relief. 4. A letter from the U.S. Criminal Investigation Command, 30 October 2019, shows, in part, a search of the Army criminal file indexes utilizing the applicant's information revealed no records. 5. AR 635-200, chapter 14, states action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 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), commission of a serious offense, and convictions by civil authorities. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 6. 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. 8. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) psychologist was asked by the ABCMR to review this request. Documentation reviewed includes the application and supporting documentation and her military service records. The Department of Veterans Affairs (VA) electronic medical record (Joint Legacy Viewer (JLV)) and civilian medical documentation were also reviewed. a. JLV indicated a 100% service connected disability rating, but there were no entries in JLV indicating specific conditions associated with the disability rating. There was an absence of any clinically significant behavioral health notes in JLV, as well as no available data on the problem list. b. Based on the available information, it is the opinion of the ARBA psychologist that the applicant has a mitigating behavioral health condition, PTSD-related symptoms/MST. As there is an association between PTSD-related symptoms/MST and avoidant behavior, there is a nexus between applicant’s PTSD-related symptoms and her absences from duty, lackluster performance, and neglect of personal finances. In addition, as there is an association between PTSD-related symptoms/MST and resistant, hostile attitudes toward authority figures, there is a nexus between her PTSD- related symptoms and the disrespectful behavior she demonstrated. Also, as there is an association between PTSD-related symptoms/MST and use of illicit drugs to self- medicate symptoms, there is a nexus between her PTSD-related symptoms and the pattern of substance abusing behavior applicant demonstrated. Chronological review of her military career indicates a dramatic change in the applicant’s motivation, temperament and level of instability occurred during her time in service. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers who experience several MST events and develop PTSD-related symptoms in a noncombat military environment. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, her record of service, the frequency and nature of her misconduct, and the reason for her separation. The Board considered the applicant's PTSD/MST claim and the review and conclusions of the ARBA psychologist. 2. A majority of the Board concurred with the conclusion of the medical advising official regarding her misconduct being mitigated by PTSD-related symptoms/MST. Based on a preponderance of evidence, the majority determined the applicant's character of service should be changed to under honorable conditions (general), and noted that because the basis for her reduction to pay grade E-1 was her original character of service, her rank/grade should be changed to specialist/E-4. 3. The member in the minority noted that the applicant's misconduct included illegally selling a controlled substance and found that this misconduct is not mitigated by PTSD/MST and on its own would have been a basis for discharging her for misconduct with an under other than honorable conditions character of service. The member in the minority determined the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX : :XX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :XX : 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 reissuing her DD Form 214 to show her character of service as under honorable conditions (general) and to show she held the rank/grade of specialist/E-4 with an effective date of pay grade of 13 December 1989. 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, United States 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. 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), commission of a serious offense, and convictions by civil authorities. 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. 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. 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. 3. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised 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. 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 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; TBI; sexual assault; sexual harassment. Boards were directed 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. The guidance further describes evidence sources and criteria, and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 5. 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 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. 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, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190012718 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1