IN THE CASE OF: BOARD DATE: 5 October 2022 DOCKET NUMBER: AR20200008097 APPLICANT REQUESTS: * reconsideration of her previous request for an upgrade of her general, under honorable conditions discharge to honorable * an appearance hearing before the Board 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), 2 June 2020 * DD Form 149 (Application for Correction of Military Record), 2 June 2020 * DD Form 149, 22 February 2002 (Previous Application) * Veterans Affairs progress notes, 8 May 2020 * VA letter, 18 May 2020 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 AC87-XXXXX on 8 February 19XX. 2. The applicant states: a. She was told she would be discharged medically due to the continual health issues she was having however it was categorized as a chapter 5. She objected to the characterization because she was able to perform her job but had to be treated often for her conditions. b. She requests the change because her service-connected conditions are proof that her health issues requiring treatment were not due to being unfit or warranted a reason of "failure to maintain acceptable standards for retention." c. She was misled by participating in a review to decide that she was being discharged for medical reasons. She was not given the option to review or dispute the characterization and received her discharge before boarding the plane home. 3. A review of the applicant's service records shows: a. On 16 April 1979, she enlisted in the Regular Army for a period of 4 years at 18 years of age. She was trained in the legal field and awarded the military occupational specialty 71D (Legal Clerk) and attained the grade/pay grade private first class/E-3. b. She served in Germany from 5 December 1979 to 9 July 1981. While in Germany, she was counseled: (1) On 16 March 1981, for her deportment towards her superior officer, in that she turned her back on her superior officer when being spoken to in order to ignore what he was saying. She was also counseled on specific shortcomings of her duties, for booking improper appointments that were not legal in nature. She was further counseled on her responsibilities to act as a receptionist when other personnel were absent. (2) On 18 March 1981, for poor typing performance, handling of clients, wearing earrings to work, repeatedly coming into work late, and not reporting in when released from her battalion unit, and not reporting in after going to sick call. c. On 10 April 1981, the Office of the Staff Judge Advocate formally counseled her and relived her from all duty with the legal center. He stated in the 7 1/2 months she was assigned to the legal office she was unable to become a useful member of the office and had done less as time went on, not because of any lack of ability but due to lack of motivation. Her unit commanding officer specifically counseled her for: * inappropriate deportment towards him by continuing to fail to use the proper form of address to him as an officer, not to lean on his desk as he was counseling her, and turning her back on him before he had finished speaking to her * inability to abide by normal duty hours, specifically for leaving duty early at 1153 hours on 1 April 1981 without being released for lunch * discourteous treatment of clients * socializing in the office with a male friend for 45 minutes on 7 April 1981 * soliciting a Soldier to make a false statement against another Soldier involved in a marital dispute with another Soldier who was a friend of hers * failure to master the mag card equipment in preparing correspondence and wills * Continued inadequate screening of clients d. On 22 June 1981, her immediate commander notified her of his intent to initiate separation action against her under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), paragraph 5-31, under the expeditious discharge program (EDP), and discharge her from the Army with a service characterization of general, under honorable conditions. The reasons for his proposed action were: * poor attitude * lack of motivation * lack of self-discipline * failure to demonstrate promotion potential e. On 19 June 1981, she acknowledged receipt of his commander's notification of his proposed discharge from the U.S. Army under the provisions of AR 635-200, paragraph 5-31. She consulted with counsel and was advised of the basis of the contemplated separation and voluntarily consented to this discharge. She elected not to submit statements in her own behalf. She understood that she may expect to encounter substantial prejudice in civilian life if a discharge general, under honorable conditions was issued to her. She further understood that as the result of issuance of a discharge general, under honorable conditions she may be ineligible for many or all benefits as a veteran under both Federal and State laws and that she may expect to encounter substantial prejudice in civilian life. f. The applicant's immediate commander initiated separation action against her under AR 635-200, paragraph 5-31, under the EDP and recommended she be issued a General Discharge Certificate. In his memorandum he stated the applicant was pending non-judicial punishment for 14 days absent without leave (AWOL) in conjunction with leave to continental United States. g. On 23 June 1981, the separation authority approved and ordered the applicant's discharge under provisions of AR 635-200, paragraph 5-31, and directed issuance of a General Discharge Certificate. He directed the applicant not be assigned to the Individual Ready Reserve. h. On 2 July 1981, she accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for absenting herself from her unit, from on or about 0530 hours, 1 June 1981 to 2000 hours, 14 June 1981. Her punishment consisted of reduction to private/E-1, forfeiture of $250.00 per month for 2 months, 30 days restriction and 30 days extra duty. The portions of her punishment of reduction to E-1, forfeiture of $100.00 per month, and 10 days of restriction and extra duty were suspended for 120 days. She did not appeal the punishment. i. On 10 July 1981, she was discharged accordingly. Her DD Form 214 shows she was discharged under the provisions of paragraph 5-31h(2), AR 635-200 (EDP), for failure to maintain acceptable standards for retention, with a general, under honorable conditions characterization of service. She completed 1 year, 11 months, and 17 days of active service with lost time from 1 June 1981 to 14 June 1981. She was awarded or authorized the Expert Marksmanship Qualification Badge with Rifle Bar (M-16). j. On 8 February 1989, (ABCMR Docket Number AC87-xxxxx), the ABCMR denied her request for an upgrade of her discharge. The Board determined there was not sufficient evidence to conclude that it would be in the interest of justice to grant the relief requested. k. She provided copies of medical consultation notes, 8 May 2020, showing she was receiving VA combined service-connected disability of 90% for bronchial asthma, migraine headaches, limited motion of ankle, mood disorder, and a knee condition. l. There is no evidence of record showing she applied to the Army Discharge Review Board for an upgrade of her discharge within that Board's 15 year statute. 4. By Regulation (AR 635-200), paragraph 5-31h(2) provides that members who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army because of existence of one or more of the following conditions may be separated when they have failed to respond to counseling (DA Form 4856, General Counseling Form). No member will be separated under this program unless the Army member voluntarily consents to the proposed separation. 5. 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. 6. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: Documentation does not support the applicant’s current service connected condition of Mood Disorder due to General Medical Condition influenced the misconduct for which the applicant was discharged. Accordingly, an upgrade is not supported. b. The applicant was discharged on 10 July 1981 under AR 635-200, Para 5-31h (2), Expeditious Discharge Program (EDP), for failure to maintain acceptable standards for retention with an Under Other than Honorable characterization. The basis for separation was poor attitude, lack of motivation, lack of self-discipline, and failure to demonstrate promotion potential. The misconduct underlying the basis for separation included inappropriate deportment toward a Commanding Officer as she failed to use the proper form of address, leaned on his desk when he was counseling her, and turned her back before he had finished speaking; inability to abide by normal duty hours to include leaving duty early without being released; discourteous treatment of clients; socializing in the office with a male friend for 45 minutes; soliciting a Soldier to make a false statement against another Soldier involved in a marital dispute with a Solder who was her friend; failure to master the mag card equipment in preparing correspondence and wills; and continued inadequacy in screening clients. During the separation process, the applicant received NJP for an AWOL between 01 and 14 June 1981. The applicant is requesting an upgrade to Honorable asserting she was told she’d receive a Chapter 5 for medical issues, but objected as she was able to perform her job. The applicant contends her service connected conditions support that she was not unfit at the time of separation nor “warranted a reason of failure to maintain accepting standards for retention.” c. In 1989, the applicant applied to the ABCMR requesting her discharge and reenlistment code reflect she was separated for “physical disability retirement.” She asserted her separation was due to medical conditions and statements about her duty performance “are not true or accurate.” d. Due to the period of service, electronic active duty medical records are void. e. The applicant is 50% service connected for Mood Disorder related to General Medical Condition. Of note, the rating is backdated to 2007, 26 years’ post-discharge. In 2007, the applicant requested medication management; she was receiving non-VA psychiatric care with an antidepressant prescribed. The provider noted mood symptoms due to physical conditions, pain, and related limitations. In April 2008, the applicant had a Compensation and Pension (C&P) exam; findings unavailable. In 2014, the applicant had a second C&P exam with diagnoses of Depressive Disorder due to Medical Condition and Unspecified Anxiety Disorder. In January 2017, the applicant held a diagnosis of Major Depressive Disorder. The applicant’s engagement with psychiatry has been sporadic. BOARD DISCUSSION: The Board carefully considered the applicants request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was discharged under the Expeditious Discharge Program, for failure to maintain acceptable standards for retention, with a general, under honorable conditions characterization of service. She completed 1 year, 11 months, and 17 days of active service with lost time from 1 June 1981 to 14 June 1981. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board found insufficient evidence of in-service mitigating factors to overcome her failure to maintain acceptable standards for retention. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that 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 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 to amend the decision of the ABCMR set forth in Docket Number AC87- XXXXX 8 February 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. 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 ABCMR. 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. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. 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. 2. Army Regulation AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provided the authority for separation of enlisted personnel upon expiration term of service, prior to ETS, and the criteria governing the issuance of honorable, general, and undesirable discharge certificates. 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. c. Paragraph 5-31h(2) provides for separating enlisted members under the expeditious discharge program (EDP). This program provides that members who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army because of existence of one or more of the following conditions may be separated when they have failed to respond to counseling (DA Form 4856, General Counseling Form). The criteria in section VIII, chapter 1, will govern whether the member will be released from active duty with transfer to the IRR, or discharged. A discharge general, under honorable conditions is normally appropriate for a Soldier discharged under this chapter. * Poor attitude * Lack of motivation * Lack of self-discipline * Inability to adapt socially or emotionally * Failure to demonstrate promotion potential d. No member will be separated under this program unless the Army member voluntarily consents to the proposed separation. The Army member's acceptance of separation may not be withdrawn after the date the separation authority approves the separation. 3. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service. Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by a medical evaluation board and will be referred to a physical evaluation board. 4. 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. 5. The acting Under Secretary of Defense for Personnel and Readiness provided clarifying guidance on 25 August 2017, which expanded the 2014 Secretary of Defense memorandum, that directed the BCM/NRs and DRBs to give liberal consideration to veterans looking to upgrade their less-than-honorable discharges by expanding review of discharges involving diagnosed, undiagnosed, or misdiagnosed mental health conditions, including PTSD; traumatic brain injury; or who reported sexual assault or sexual harassment. 6. 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. 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 based on 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. 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) AR20200008097 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1