ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  11 August 2021 DOCKET NUMBER:  AR20200004647 


APPLICANT REQUESTS:  upgrade of her discharge under than honorable conditions to honorable. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), Correction of Military Record), 18 February 2020. 

FACTS: 

1.The applicant did not file within the three-year time frame provided in Title 10, UnitedStates Code, section 1552(b); however, the Army Board for Correction of MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states she was never mentally stable enough to join or stay in themilitary. Forcing her to eat was never any way to cure any illness they presumed shehad.

3.A review of the applicant's service records shows:

a.On 7 July 2006, she enlisted in the Mississippi Army National Guard (MSARNG)for 8 years at 21 years of age. She attained the grade/pay grade of private 2/E-2. 

b.She was assigned to the 106th Brigade Support Battalion and on 23 August2006, she was attached to the MSARNG Receiving and Retention Battalion for pay and administration training. 

c.On 30 August 2006, she entered active duty (AD) for initial active dutytraining/military occupational specialty training. 

d.On 15 February 2007, she was assigned to P Company, 266th QuartermasterBattalion, 23rd Brigade, Fort Lee, VA, for training. 

e.Her duty status was reported as absent without leave (AWOL) on 16 February2007 and dropped from the rolls as a deserter on 18 March 2007. 

f.The Adjutant General's Office, MSARNG, Orders 123-816, 3 May 2007, releasedher from the MSARNG with an uncharacterized characterization of service, effective 18 March 2007, and reassigned her to active component, U.S. Army, 266th Quartermaster Battalion, Fort Lee, VA. 

g.Her NGB Form 22 (National Guard Bureau Report of Separation and Record ofService), 18 March 2007, shows she was discharged without personal notice. 

h.She returned to military control on or about 19 January 2011.

i  On 19 January 2011, court-martial charges were preferred against her. Her DD Form 458 (Charge Sheet) shows she was charged with one specification of being AWOL from 16 February 2007 to 19 January 2011 (3 years, 10 months, and 28 days). 

j.After consulting with legal counsel on 19 January 2011, she voluntarily requesteddischarge in lieu of trial by court-martial, under the provisions of Army Regulation (AR) 635-200, chapter 10, in lieu of trial by court-martial. In doing so, she acknowledged that the charges preferred against her under the UCMJ, authorized the imposition of a bad conduct discharge or dishonorable discharge. She further acknowledged: 

.she had not been subjected to coercion with respect to her request fordischarge

.she had been advised of the implications that were attached to it

.by submitting the request, she was acknowledging she was guilty of thecharge(s) against her or of (a) lesser included offense(s) therein containedwhich also authorized imposition of a bad conduct or dishonorable discharge

.she could be discharged under other than honorable conditions and she couldbe ineligible for many or all benefits administered by the Department ofVeterans Affairs (VA)

.she could be deprived of many or all Army benefits and she could beineligible for many or all benefits as a veteran under both Federal and Statelaws

.she could expect to encounter substantial prejudice in civilian life by reason ofan under other than honorable conditions discharge

.she was advised she could submit any statements she desired in her ownbehalf, and elected to do so



k.On 19 January 2011, she provided a self-authored letter, stating she joined themilitary for discipline and it was a personal goal of hers. She enjoyed the military for its activities and discipline. After her grandfather's death she left the military because she 
didn't see why she loved the military anymore. She is asking for a better characterization for credibility and so she can enter nursing school. She is deeply sorry the military did not work out for her. 

.  On 20 January 2011, her intermediate commander recommended approval of her chapter 10 request, with an under other than honorable conditions discharge, and forwarded his request to the approval authority. 

m.On 31 January 2011, the approval authority approved her request for discharge,under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial. He directed the applicant’s reduction to the lowest enlisted grade and her discharge with an under other than honorable conditions character of service. 

n.On 23 February 2011, she was discharged. Her DD Form 214 (Certificate ofRelease or Discharge from Active Duty) shows she was credited with completing 7 months and 2 days of net active service, and she was discharged under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial. Her service was characterized as under other than honorable conditions. Additionally, she had excess leave time from 20 January 2011 to 23 February 2011 (a period of 35 days). She was awarded or authorized the National Defense Service Medal. 

o.On 14 October 2015, the Army Discharge Review Board denied her request foran upgrade of her discharge finding it was both proper and equitable. 

4.By regulation (AR 635-200), a member who has committed an offense or offensesfor which the authorized punishment included a punitive discharge may submit arequest for discharge in lieu of trial by court-martial. The request may be submitted atany time after charges have been preferred and must include the individual's admissionof guilt. Although an honorable or general discharge is authorized, a discharge underother than honorable conditions is normally considered appropriate.

5.In reaching its determination, the Board can consider the applicant’s petition and herservice record in accordance with the published equity, injustice, or clemencydetermination guidance.

6.MEDICAL REVIEW:

The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Solutions (HAIMS) indicates she was not seen by behavioral health while in training at Ft Jackson. A review of her separation packet indicates the applicant left training after her grandfather’s death. In her application she states she was never mentally stable but 




provides no medical documentation of any psychiatric diagnoses. A review of JLV indicates the applicant was seen as a humanitarian emergency. She was seen in the emergency room on 23 Oct 2019. She reported being in the Army for 2 years (service record indicates 8 months) and reports difficulty with employment. She reports use of alcohol and cocaine daily. She was evaluated in the mental health clinic on 6 Nov 2019. She reported a history of suicide attempts and a family history of Schizophrenia and Bipolar Disorder. She has been incarcerated multiple times for disorderly conduct. She attended some college and works primarily in fast food restaurants. She was diagnosed with Bipolar Disorder, Cocaine Dependence, and Alcohol Dependency. She was evaluated on 18 Nov 2019 for the addictions treatment program but declined treatment as “she likes getting high.” Treatment note from 5 Dec 2019 indicates she was employed and wanted OBGYN services. She was informed that she was not eligible for treatment due to discharge status. She does not have a service connected disability rating. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is no documentation to support a behavioral health diagnosis at the time of her discharge. The applicant was diagnosed with Bipolar Disorder and significant substance abuse 12 years after she went AWOL.  There is no indication she was dealing with a psychiatric condition at the time of her misconduct. There is no documentation to suggest she did not meet retention standards at the time of her discharge. The applicant did not have a diagnosed behavioral health condition to consider with respect to mitigation of the misconduct that led to her discharge. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, record of service, the frequency and nature of misconduct, and the reason for separation.  The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical reviewer's assessment.  There is nodocumentation to suggest she did not meet retention standards at the time of her discharge. The applicant did not have a diagnosed behavioral health condition to consider with respect to mitigation of the misconduct that led to her discharge. There is insufficient evidence of in-service mitigating factors to overcome the misconduct. The Board found insufficient evidence of post-service achievements or reference letters to support clemency.  Based on a preponderance of evidence, the Board determined thatthe character of service the applicant received upon separation was not in error or unjust. For that reason, the Board voted to deny relief. 
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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 

X CHAIRPERSON

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 forcorrection of military records must be filed within 3 years after discovery of the allegederror or injustice. This provision of law also allows the ABCMR to excuse an applicant'sfailure to timely file within the 3 year statute of limitations if the ABCMR determines itwould be in the interest of justice to do so.

2.Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in effectat the time, set policies, standards, and procedures to ensure the readiness andcompetency of the force while providing for the orderly administrative separation ofSoldiers for a variety of reasons.

a.Chapter 3-7 provides:

(1)An honorable discharge is a separation with honor. The honorablecharacterization is appropriate when the quality of the Soldier’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.  Only the honorable characterization may be awarded a Soldier upon completion of his/her period of enlistment or period for which called or ordered to active duty or active duty training or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted.  

(2)A general discharge is a separation from the Army under honorableconditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization.  It will not be issued to Soldiers solely upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. 

b.Chapter 10 provided, that a member who has committed an offense or offensesfor which the authorized punishment included a punitive discharge may submit a request for discharge in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 

3.On 3 September 2014, the Secretary of Defense directed the Service DischargeReview Boards (DRBs) and Service Boards for Correction of Military/Naval Records(BCM/NRs) to carefully consider the revised PTSD criteria, detailed medicalconsiderations, 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 andReadiness issued clarifying guidance for the Secretary of Defense Directive to DRBsand BCM/NRs when considering requests by Veterans for modification of theirdischarges due in whole, or in part, to:  mental health conditions, including PTSD; TBI;sexual assault; sexual harassment. Boards were directed to give liberal consideration toVeterans petitioning for discharge relief when the application for relief is based in wholeor in part to those conditions or experiences. The guidance further describes evidencesources and criteria, and requires Boards to consider the conditions or experiencespresented in evidence as potential mitigation for that misconduct which led to thedischarge.

5.The Under Secretary of Defense for Personnel and Readiness issued guidance toMilitary Discharge Review Boards and Boards for Correction of Military/Naval Recordson 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemencygenerally refers to relief specifically granted from a criminal sentence. Boards forCorrection of Military/Naval Records may grant clemency regardless of the court-martialforum. However, the guidance applies to more than clemency from a sentencing in acourt-martial; it also applies to any other corrections, including changes in a discharge,which may be warranted on equity or relief from injustice grounds.

a.This guidance does not mandate relief, but rather provides standards andprinciples 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 ofservice 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. 

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