IN THE CASE OF:  

		BOARD DATE:  5 November 2021

		DOCKET NUMBER:  AR20200010098


APPLICANT REQUESTS:  through counsel: 

*	the characterization of her service be upgraded from under other than honorable 
conditions (UOTHC) to honorable based on her military sexual trauma (MST) and 
post-traumatic stress disorder (PTSD)
*	a personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Petition for Discharge Upgrade with Legal Brief
*	Enlistment Contract and allied documents
*	Promotion documents
*	Letters of Appreciation
*	Photograph of applicant and former spouse
*	Applicant’s Statement Requesting Discharge
*	Department of Veterans Affairs (VA) Disability Statements (3)
*	Absent Without Leave (AWOL) Inquiry and letters to family members
*	High School Equivalency Certificate
*	Nursing Assistant Technician Certificate
*	VA Disability Questionnaire
*	VA Benefits Screening
*	VA Benefits Decision Letters (2)
*	Letters of Support (2)
*	Policy Memorandums (Hagel, Carson, Kurta, Wilkie)

FACTS:

1.  The applicant did not file within the three-year time frame provided in Title 10, United 
States Code, section 1552(b); however, the 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’s counsel states during the applicant’s time in the service, she endured 
an incredibly abusive marriage, MST, and PTSD. A particularly brutal beating by her 
former husband led her to go temporarily insane, and to go AWOL. She was 
subsequently discharged with an UOTHC characterization of service.

3.  Counsel adds in a 34-page brief:

	a.  The applicant excelled in the military, being promoted from private first class to 
specialist four (SP4) within 7 months of enlisting. She received three letters of 
appreciation for the outstanding manner in which she performed her duties.

	b.  She married a fellow Soldier on 12 July 1971. The marriage quickly deteriorated 
after her husband became physically and sexually violent and began abusing drugs and 
alcohol just months into their marriage. Counsel recounts several incidents of abuse 
that included leaving her stranded, tying her up, death threats, imprisonment, and 
physical abuse. The applicant reported these incidents to the police; however, they told 
her they could not get involved in domestic problems. Her command even denied her 
request for transfer to Oakland. After a severe beating in June 1972, which left her 
beaten and bloody, she walked to a military hospital for medical care but was required 
to wait for treatment. The longer she waited the more she lost her mind. She fled the 
situation without money, clothes, or any idea where she was going.

	c.  The applicant’s sister confirms she picked her up. The applicant was so 
disoriented and afraid that she went into hiding rather than return and let her husband 
kill her. During her absence the U.S. Army contacted the applicant’s family inquiring 
about her location. In that correspondence the military acknowledged knowing the 
applicant had marital problems. She later returned from being AWOL and surrendered 
to a chaplain at Fort Lewis, Washington.

	d.  After being discharged from the service, the applicant struggled with her mental 
health; however, she managed to become a productive citizen, despite her horrific 
experience. The VA diagnosed the applicant with PTSD and her request to upgrade her 
discharge should be reviewed in accordance with current liberal Department of Defense 
guidance which allows for liberal consideration in cases where the individual has a 
diagnosis of PTSD.

4.  The applicant provides a statement wherein she affirms the severe physical and 
sexual abuse she suffered at the hands of her spouse, and indicates that she was also 
the victim of a group rape attempt during her military service. She contends that it was 
because of the abuse, and a fear for her life, that she went AWOL, but eventually turned 
herself in. Rather than be court-martialed, she chose to be voluntarily discharged. To 
this day she has panic attacks, cannot sleep in a dark room, has problems building 
relationships, and problems being around people for long periods of time. She is 
incredibly anxious, paranoid, and socially impaired. She has accomplished many things, 
to include completing her high school education and maintaining employment. She still 
believes the Army is a great institution.

5.  A review of her military records show the applicant enlisted in the Regular Army on 
18 February 1971. The highest grade she held was SP4.

6.  On 27 July 1982, court-martial charges were preferred against the applicant for 
being AWOL.

7.  After consulting with counsel, the applicant voluntarily requested discharge under the 
provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted 
Personnel), Chapter 10, for the good of the service. In her request for discharge, she 
acknowledged:

	a.  Her understanding that by requesting discharge, and if her discharge request was 
approved, she could be deprived of many or all Army benefits, she could be ineligible 
for many or all benefits administered by the VA, and she could be deprived of her rights 
and benefits as a veteran under both Federal and State laws.

	b.  She was advised of the basis for the contemplated trial by court-martial, the 
maximum permissible punishment authorized under the UCMJ, the possible effects of 
an UOTHC discharge, and the procedures and rights that were available to her.

	c.  She elected to submit a statement in her own behalf wherein she cited the reason 
for requesting a voluntary discharge as being unable to adjust to military life and not 
being able to deal with her marital problems and divorce. She always felt she was on 
the verge of a nervous breakdown.

8.  The separation authority approved the applicant's request for discharge on 9 August 
1972 under the provisions of AR 635-200, Chapter 10, for the good of the service, and 
directed reduction to the lowest enlisted grade and the issuance of an undesirable 
discharge certificate.

9.  On 16 August 1972, the applicant was discharged in accordance with the separation 
authority’s directive. Her DD Form 214 shows she was discharged in the lowest enlisted 
grade and her service was characterized as UOTHC. She completed 1 year, 3 months, 
and 14 days of active service with 75 days of lost time (24 March 1972 to 20 April 1972 
and 8 June 1972 to 24 July 1972).

10.  A query of the U.S. Army Criminal Investigation Command found no records 
showing the applicant reported being physical or sexually abused while on active duty.

11.  The applicant provides several letters of support, witness statements, certificates of 
appreciation, post-service education records, promotion records, and miscellaneous 
service records, which show her many achievements and speak to good character.

12.  Several VA documents provided by the applicant show she was awarded disability 
compensation for PTSD and reported being sexually and physically abused by her 
spouse while on active duty.

13.  By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings 
may be authorized by a panel of the ABCMR or by the Director of the ABCMR.

14.  The Board should consider the applicant's statement in accordance with the 
published equity, injustice, or clemency determination guidance.

15.  MEDICAL REVIEW:  The Army Review Boards Agency (ARBA) Behavioral Health 
(BH) Advisor reviewed this case. Documentation reviewed included the application and 
supporting documents, the applicant's military service records, and the VA electronic 
medical record (Joint Legacy Viewer (JLV)).  

     a.  Review of JLV indicates that the applicant is 70% service connected for PTSD. 
Documentation reveals that applicant’s PTSD is related to interpersonal violence she 
suffered while on active duty. There are no other BH diagnoses contained in the VA 
medical record. 
     b.  The applicant is service connected for PTSD related to interpersonal violence and 
self-reports experiencing an MST. It is the opinion of the ARBA BH Advisor that 
applicant’s PTSD, as well as her experience of MST, likely contributed to her going 
AWOL. The misconduct that led to her separation is mitigated.


BOARD DISCUSSION:

1.  The Board determined the available evidence is sufficient to fully and fairly consider 
this case without a personal appearance by the applicant.  

2.  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 and counsel's statements, the applicant's record of service, the 
frequency and nature of her misconduct, and the reason for her separation. The Board 
considered the applicant's MST and PTSD claims and the review and conclusions of the 
ARBA BH Advisor.

3.  The Board concurred with the conclusion of the ARBA BH Advisor that the 
applicant's misconduct was mitigated by PTSD and MST.  The Board found the 
mitigating factors in this case sufficient to recommend upgrading her character of 
service as well as changing the reason and authority for her discharge.  Based on a 
preponderance of evidence, the Board determined the applicant's character of service 
should be changed to honorable and the reason for her discharge should be changed to 
Secretarial authority with the associated codes reflected on a reissued DD Form 214.  
The Board further found that, because her reduction in grade was due to the original 
character of service, her rank should be restored to SP4.  


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:XX	:XX	:XX	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	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 the following entries:

*	Rank – SP4
*	Pay grade – E-4 
*	Effective date of rank – 16 September 1971 
*	Character of service – honorable 
*	Separation authority – AR 635-200, Chapter 5, Section II
*	Separation code – 21L
*	Reenlistment code – RE-1 
*	Narrative reason for separation – Secretarial authority

		  
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 Army Board for Correction of 
Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year 
statute of limitations if the ABCMR determines it would be in the interest of justice to do 
so.

2.  Army Regulation 635-200 (Personnel Separations-Enlisted Personnel) sets forth the 
basic authority for the separation of enlisted personnel. This regulation states:

	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.  Chapter 10 of that regulation provides, in pertinent part, that a member who has 
committed an offense or offenses for which the authorized punishment includes a 
punitive discharge may, submit a request for discharge for the good of the service in lieu 
of trial by court-martial. Although an honorable or general discharge is authorized, a 
discharge under other than honorable conditions is normally considered appropriate.

	d.  Chapter 5 of the regulation provides, in part, that the separation of enlisted 
personnel for the convenience of the Government is the prerogative of the Secretary of 
the Army and will be accomplished only by his authority. Except as delegated by this 
regulation or by special Department of the Army directives, the discharge or release of 
any enlisted member of the Army for the convenience of the Government will be in the
Secretary's discretion with issuance of an honorable or general discharge certificate as 
determined by him. Such authority may be given either in an individual case or by an 
order applicable to all cases specified in such order.  The separation program number 
associated with separation under this authority was 21L.

3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military Discharge Review Boards and Boards for Correction of Military/Naval Records 
on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency 
generally refers to relief specifically granted from a criminal sentence. Boards for 
Correction of Military/Naval Records may grant clemency regardless of the court-martial 
forum. However, the guidance applies to more than clemency from a sentencing in a 
court-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 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, 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 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.

4.  AR 15-185 (ABCMR) 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, which is 
that what the Army did was correct.

	a.  The ABCMR is not an investigative body and decides cases based on the 
evidence that is presented in the military records provided and the independent 
evidence submitted with the application. The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence.

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence 
or opinions. Additionally, it states in paragraph 2-11 that 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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20200010098


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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