IN THE CASE OF: BOARD DATE: 24 May 2021 DOCKET NUMBER: AR20200001794 APPLICANT REQUESTS: reconsideration of her previous request to upgrade her general, under honorable conditions discharge to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Emails from the applicant * Medical documents submitted by the applicant FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2015000791 on 20 August 2015. 2. The applicant states: a. She was dealing with anxiety, depression, post-traumatic stress disorder (PTSD), sexual trauma while enlisted, and harassment due to her sexual orientation (lesbian). She retaliated after trying to get help from her superiors with no good outcome. b. She has been taking anti-depressants for her anxiety and depression caused by sexual trauma she dealt with during her last station. It would be in her medical reports and she could probably obtain a copy of them. Also she has some other paperwork she could email. She has attached the documents for review by the Case Management Division. She currently goes to the Bay Pine Veterans Affairs (VA) hospital for her anti- depressants/anxiety meds. 3. The applicant had prior honorable enlisted service in the New York Army National Guard from 27 March 1986 through 25 January 1988. 4. On 26 January 1988, she enlisted in the Regular Army for a period of 4 years. She was assigned to the 4th Materiel Management Center (MMC), Fort Hood, TX, and promoted to specialist (E-4) on 1 January 1990. 5. A review of the applicant's military personnel record shows that during the period 14 March 1988 through 27 August 1990 she was formally counseled on at least 26 occasions for: * failing to report to her place of duty on multiple occasions * failing to pay just debts on multiple occasions * being intoxicated on multiple occasions * monthly duty performance * bar to reenlistment * speeding while driving on post and having no insurance * failing to obey instructions to return a video to the chapel * writing bad checks on multiple occasions * after duty-hours employment * the separation process 6. A thorough review of the counselling statements failed to reveal any references to an admission of homosexuality, bullying, sexual harassment, sexual assault or military sexual trauma (MST). 7. The applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 on two occasions for violations of the Uniform Code of Military Justice (UCMJ): * Article 92, for failing to obey a lawful order (violating quarters on 26 and 27 April 1988) * Article 86 (three specifications), for failing to go to her appointed place of duty (morning formation) on 28 July, 29 July, and 12 August 1988 8. On 27 March 1989, a Bar to Reenlistment was approved and imposed against the applicant based on receiving NJP for failing to be at her appointed place of duty and failing to obey a lawful order and regulation. Other factual and relevant indicators of un- trainability or unsuitability were the applicant’s receipt of counseling at least eight times. She elected not to submit a statement in her own behalf. On 11 December 1989, her chain of command approved the removal of the Bar to Reenlistment. 9. The applicant’s record contained documents that show she wrote multiple dishonored checks at the Fort Hood Main Exchange and was notified of indebtedness with multiple companies. 10. On 30 May 1990, the applicant received NJP under the provisions of Article 15 of the UCMJ for violating Article 86 (three specifications), by failing to go at the time prescribed to her appointed place of duty on 4 May 1990 (work call formation), and on 7 and 14 May 1990 (physical training (PT) formation); her punishment was reduction to grade E-3, 14 days of extra duty, and forfeiture of $224.00 (suspended, to be automatically remitted if not vacated before 29 November 1990). 11. On 20 July 1990, the applicant failed to go to her appointed place of duty (PT formation). The applicant's commander vacated the suspension of the punishment of forfeiture of $224.00. 12. On 28 August 1990, the applicant was medically cleared for separation. On 18 September 1990, she was psychiatrically cleared for separation actions deemed appropriated by her chain of command. 13. On 27 September 1990, the applicant's commander notified her that he was recommending her for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12b, based on a pattern of misconduct. The reasons for his proposed action were the applicant's receipt of NJP on three occasions and counseling on numerous occasions for her duty performance, missing formation, failing to be at her appointed place, and failure to pay just debts. a. The applicant was advised of her rights and the separation procedures involved. The commander also informed her that he was recommending a general, under honorable conditions characterization of service. b. The applicant acknowledged receipt of the commander's notification and that she had been advised of her right to consult with counsel. c. Following notification of the separation action, the applicant consulted with legal counsel and she was advised of the rights available to her. She was advised she may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions discharge was issued to her. d. The applicant also acknowledged she understood that if she received a discharge/character of service that is less than honorable conditions she may apply to the Army Discharge Review Board or ABCMR for upgrading her discharge. However, an act of consideration by either board did not imply that her discharge would be upgraded. e. She elected not to submit statements in her own behalf. The applicant and her counsel placed their signatures on the document on 2 October 1990. f. Her chain of command recommended approval of her separation with a general, under honorable conditions discharge. g. The separation authority approved the recommendation for discharge of the applicant and directed issuance of a General Discharge Certificate. 14. The applicant's DD Form 214 shows she entered active duty this period on 26 January 1988 and she was discharged on 29 October 1990 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, with service characterized as under honorable conditions (general). She had completed 3 years, 9 months, and 2 days of net active service this period. She had lost time during this period from 21 to 22 September 1990. 15. In support of her previous request to the ABCMR she provided the following evidence: a. DA Form 87 (Certificate of Training) that shows she completed the 13th Support Command (Corps), MMC Supply Course at Fort Hood, TX, on 9 September 1988. b. DA Form 3647 (Inpatient Treatment Record Cover Sheet) that shows the applicant was admitted to Darnall Army Community Hospital, Fort Hood, TX, on 14 December 1988 and discharged on 21 December 1988. She was diagnosed with Axis I: Adjustment Disorder with Depressed Mood and Alcohol Abuse. c. DA Form 87 that shows she completed the Ill Mobile Armored Corps, Combat Stress Control Component at the Department of Psychiatry, Fort Hood, TX, on 21 February 1989. d. U.S. Army Medical Department Activity, Fort Hood, TX, memorandum, dated 8 March 1989, that shows the Division Psychiatrist evaluated the applicant: through clinical interview and psychometrics, and he diagnosed her with Axis I: Alcohol Abuse, in remission. He reported that there was no evidence the applicant was suffering from a thought or affective disorder. He noted, "In the absence of psychotic symptoms, and following the current Ill Corps administrative law guidelines, [the applicant] is regarded as being 'mentally sound' [psychiatrist's emphasis] at the time of the incident in question." 16. On 20 August 2015, the ABCMR denied the applicant’s request for an upgrade of her discharge. 17. On 12 May 2021, the U.S. Army Crime Records Center advised the Army Review Boards Agency (ARBA) via memorandum that it had no criminal investigation or military police reports (military sexual assault/Trauma) pertaining to the applicant. 18. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 19. Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary in reactions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. 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 considered appropriate. However, the separation authority may direct a general discharge if such is merited by the member's overall record. b. Chapter 3, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. 20. In reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. 21. MEDICAL REVIEW: The ARBA Medical Advisor reviewed the supporting documents and the applicant’s medical records Department of Veterans Affairs' (VA's) Joint Legacy Viewer (JLV) and made the following findings and recommendations: Although eligible for a service connection, the applicant is not service connected for any condition, either medical or behavioral health. Moreover, the VA has not diagnosed PTSD nor is there mention of MST. Rather, the applicant has been treated in the past for anxiety, depression, and personality disorder related to relationship difficulties and other psychosocial stressors. However, based on liberal consideration, the applicant’s assertion of MST is sufficient. While the applicant reported sexual trauma, abandonment, and mood symptoms prior to service which could have been the basis for her in-service psychiatric hospitalization, it is also possible the in-service psychiatric difficulties related to MST. Given liberal consideration guidance, and the possibility the applicant’s in-service behavioral health difficulties were related to a MST, the basis for separation is partially mitigated. Specifically, disobeying orders, failing to report, being intoxicated, and poor duty performance can be associated with trauma; avoidance, difficulty with authority, and substance use. However, debt, speeding, and lack of car insurance are not related to trauma. Per liberal consideration, the gravity of MST should be weighed against the unmitigated offenses when making a determination. a. The electronic case file contains a December 1988 hospital discharge summary noting diagnoses of Adjustment Disorder with Depressed Mood and Alcohol Abuse. A March 1989 Command Directed Mental Health Evaluation (CDMHE) for a line of duty (LOD) determination, subsequent to the hospitalization, indicated the applicant was mentally sound at the time of the suicide attempt and it was not in the LOD. The applicant was diagnosed with Alcohol Abuse; although “acutely distressed by perceived personal difficulties,” she did not meet criteria for any psychiatric disorder. The applicant’s exit physical reflects the psychiatric hospitalization. It also listed a December 1986 hospitalization for Alcohol detox and family problems; records are void of this event. The physician indicated the applicant reported trouble sleeping with nightmares, depression, worry about the future, and nervousness resulting in weekly Chaplin visits. A September 1990 Chapter Mental Status Exam (MSE) was normal with no diagnosis; the applicant was cleared for separation. b. a review of JLV shows that while eligible for a service connected disability rating, the applicant is not service connected nor is MST noted. In June 1996, the applicant requested housing services. Based on the interview, history, and symptoms, the applicant was diagnosed with Borderline Personality Disorder and Mixed Anxiety and Depression. The applicant attended supportive sessions through August. The applicant returned in October 2000 reporting anger with reactivity to relationship problems. The applicant reported a two-week psychiatric hospitalization while in-service, 1989, after a suicide attempt. The applicant denied disciplinary action or abuse/trauma in-service. The applicant was diagnosed with Major Depressive Disorder (MDD) with Borderline Personality traits. The applicant started medication, supportive therapy, and marital sessions for a short period of time. In February 2003, the applicant returned for medication management with diagnoses of MDD and Mixed Personality Disorder. The applicant discontinued care, but returned in April 2004 requesting help with learning financial responsibility; mood diagnoses were removed as she was asymptomatic. The applicant returned in May 2013 reporting anxiety and insomnia since age 17 related to childhood sexual abuse and feeling abandoned. The applicant was diagnosed with an Adjustment Disorder and prescribed medication. At follow up, she reported doing well and did not return until August 2014 to obtain refills. The applicant has not been back to behavioral health. ? BOARD DISCUSSION: 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 and MST claim and the review and conclusions of the ARBA Medical Advisor. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official that not all of her misconduct is mitigated by MST. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR2015000791, dated 20 August 2015. 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. Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary in reactions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. 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 considered appropriate. However, the separation authority may direct a general discharge if such is merited by the member's overall record. b. Chapter 3, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. 3. On 3 September 2014, the Secretary of Defense (Honorable Mr. Hagel) 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 UOTHC 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. The memorandum also contains guidance that states, in pertinent part: a. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. b. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 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; traumatic brain injury (TBI); 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. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. a. 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. b. 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) AR20200001794 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200001794 1 ABCMR Record of Proceedings (cont) AR20200001794 1