IN THE CASE OF: BOARD DATE: 7 April 2021 DOCKET NUMBER: AR20200009184 APPLICANT REQUESTS: The applicant requests an upgrade of her general, under honorable conditions discharge to fully honorable, and to change her narrative reason for separation. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 would like to seek help and further her education. She also indicated on her request for an upgrade that mental health and sexual assault/harassment were related to her request. 3. On 13 September 2006, the applicant enlisted in the Regular Army for a period of 4 years. She completed training requirements and was awarded military occupational specialty 25L (Cable System Installer/Maintainer). 4. A Military Police Report dated 13 March 2007, shows the applicant attempted to commit suicide by successfully ingesting a large amount of various prescription and non-prescription (over-the-counter) drugs while alone at her quarters. Further investigation revealed some of the various drugs were scattered on the dining room table inside the quarters as well as a hand written suicide note that was signed by the applicant. 5. On 30 March 2007, she was advised of her legal rights which she waived rendering a written statement concerning the incident. The written sworn statement shows, in pertinent part, the applicant stated she attempted suicide on 13 March 2007 around 0815 hours. She tried to attempt suicide because she was “depressed and stressed out”. She had been depressed since 16 February 2007 when she first arrived in Germany. She knew nothing about Germany and never been there before, and she did not know “no one” there. She had no one to talk to and being as depressed as she was she attempted suicide. She had never been away from her family. The applicant did not indicate she was a victim of sexual harassment/assault. 6. The applicant’s record also contained a suicide note, wherein she stated, she was sorry to everybody she let down, but she could not do this “shit” anymore. “Coming here was the worst mistake of my life and I can’t take it no more. So to my family I love all of you very much but this has to end”. The applicant signed the suicide note, and it did not show indications of sexual harassment/assault. 7. The applicant’s record contained multiple counseling statements for: * failing to be at her appointed place of duty on multiple occasions * failing to obey orders or regulations * disobeying and disrespecting a noncommissioned officer (NCO) * insubordinate conduct towards an NCO * making false statements * willful intention to deceive * provoking speech and gestures * malingering 8. A Report of Investigation Line of Duty and Misconduct Status (DD Form 261) shows the applicant’s self-induced overdose was determined to be in the line of duty. 9. On 22 May 2007, the applicant was notified by her commander that he was initiating action to separate her under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) Chapter 14, paragraph 14-12b, for patterns of misconduct. The reasons for the proposed actions were based on the applicant’s repeated actions in which her conduct had reflected negatively upon the military, and she had failed to obey orders. The commander also advised the applicant of her rights. a. Counsel advised the applicant of the basis for her contemplated separation, its effects, the rights available to her and the effect of a waiver of her rights. The applicant elected not to submit statements in her own behalf. b. The applicant’s commander formally recommended she be discharged and not transferred to the Individual Ready Reserve. He also recommended to waive any further requirements for rehabilitating the applicant. c. Her chain of recommended approval of the separation action and the legal office found the recommendation for separation to be legally sufficient. d. The separation authority approved the applicant’s discharge with a general, under honorable conditions character of service, and waived further rehabilitation requirements. 10. On 14 June 2007, the applicant was discharged accordingly. The DD Form 214 she was issued shows she was discharged under the provisions of AR 635-200, paragraph 14-12b, based on a “pattern of misconduct”. Her character of service was listed as “under honorable conditions (general)”. The applicant was not awarded a personal decoration. 11. On 30 June 2010, the Army Discharge Review Board (ADRB) determined the applicant was properly and equitably discharged. Accordingly, the ADRB denied her request for a change in the character and/or reason for her discharge. There was no indication of sexual harassment or assault in the applicant’s petition to the ADRB. 12. 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. 13. Army Regulation 635-200, paragraph 14-12b, states that Soldiers are subject to separation action for a pattern of misconduct consisting of discreditable involvement with civil or military authorities; and/or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice (UCMJ), Army regulations, the civil law, and time-honored customs and traditions of the Army. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 14. The Office of the Undersecretary of Defense for Personnel and Readiness provides guidance that 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 mental health conditions, Traumatic Brain Injury (TBI), post- traumatic stress disorder (PTSD), sexual harassment and sexual assault. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 15. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, 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. 16. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. A review of her service record indicates the applicant attempted suicide on 13 Mar 2007 by overdose. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) indicates she was seen on 2 Apr 2007 for evaluation following a 2-week psychiatric hospitalization in a German hospital. She reported missing family and being away from home for the first time were the reasons she attempted suicide. She denied current suicidal ideations and reported that her husband would be joining her in Germany in 2 weeks. She was diagnosed with Adjustment Disorder with Depressed Mood. On 27 Apr 2007, she reported feelings of distress and anger due to high stress levels. She believes she is receiving poor treatment from members of her unit. She denied suicidal ideation but stated her husband was returning to the U.S. to care for a child he has there but would return to Germany. On 2 May 2007, she was seen for a mental status evaluation for chapter separation. The provider noted the applicant had feasible educational and vocational plans following discharge. She reported being unmotivated and has felt depressed since arriving in Germany. Her diagnosis was Adjustment Disorder with Depressed Mood and she was found to meet retention standards IAW AR 40-501. On 15 May 2007, she was seen briefly as part of the line of duty investigation. The provider consulted with JAG and scheduled a line of duty evaluation for 18 May 2007. The line of duty evaluation was completed on the scheduled date. Her suicide attempt was determined to be in the line of duty. A review of JLV indicates the applicant completed a behavioral health intake on 2 Dec 2020. She reported struggling with depression prior to service but noted her service exacerbated her depression. Her depression worsens in October due to her husband being killed 2 years ago in October. She has been working as a mail carrier for 8 years. She reported MST while in Germany. She reported excessive drinking (daily) as a coping mechanism. She was diagnosed with PTSD and has a service connected disability rating of 30% for PTSD. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is documentation to support a behavioral health condition during her military service. She met retention standards at the time of her discharge. PTSD is considered a mitigating factor for the misconduct that led to her discharge. BOARD DISCUSSION: 1. 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 and medical advisory opinion. The Board considered the applicant’s statement, his military service record, documents provided by the applicant and a medical advisory opinion. The Board considered the medical records and the review and conclusions of the advising official. Notwithstanding, the medical advisory opinion finding PTSD is considered a mitigating factor for the misconduct that led to her discharge. The Board found insufficient evidence of in-service mitigation to overcome the misconduct. She was discharged for “pattern of misconduct and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as she did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. 2. Additionally, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change in the applicant’ narrative reason for separation. Therefore, they denied 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. 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, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200, Chapter 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. Paragraph 14-12b, provides that Soldiers are subject to separation action for a pattern of misconduct consisting of discreditable involvement with civil or military authorities; and/or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army Regulations, the civil law, and time-honored customs and traditions of the Army. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record. 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. 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. 6. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200009184 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1