IN THE CASE OF:  

BOARD DATE:  30 September 2021

DOCKET NUMBER:  AR20210005676


APPLICANT REQUESTS:  Her under honorable conditions (general) discharge be 
upgraded to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552), dated 8 December 2020, with self-
authored statement
*	DD Form 214 (Certificate of Release or Discharge from Active Duty), for the 
period ending 12 September 2007
*	Secretary of Defense Memorandum, dated 3 September 2014 [Hagel 
Memorandum]
*	Department of Veterans Affairs (VA) Form 21-0781a (Statement in Support of 
Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD) 
Secondary to Personal Assault, dated 10 September 2020 (10 pages)
*	VA Form 21-526EZ (Application for Disability Compensation and Related 
Compensation Benefits), dated 10 September 2020
*	Article, printed on 24 November 2020
*	Statements in Support of Claim, undated (two)
*	Official Military Personnel File separation processing documents (36 pages)
*	Personal Health Information documents (55 pages)
*	Judiciary Traffic Division Case Information (5 pages)
*	Psychiatric Evaluation, dated 1 December 2020 (10 pages)

FACTS:

1.  The applicant did not file within the three-year time frame provided in Title 10, U.S. 
Code (USC), section 1552 (b); however, the Army Board for Correction of Military 
Records (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 states:

	a.  One Friday evening while assigned to her first duty station, she went to a 
gathering in a male Soldier’s room.  She was given a drink, which was some type of 
punch.  She recalls having a few more drinks and not feeling well.  She made it back to 
her room to lie down.  When she woke up a non-commissioned officer (NCO) who had 
attended the party was on top of her.  She tried to push him off of her and said stop but 
then she blacked out again.

	b.  The next morning, she woke up alone in her room.  Her private area was 
extremely sore as well as her thighs.  She never said anything to anyone because she 
thought they wouldn’t believe her.  The course of the next few months included feelings 
of suicide and frequent trips to the medical clinic for sexually transmitted disease tests.  
Her alcohol usage increased and later turned into drug usage as well.  She was 
eventually separated due to misconduct and received a general discharge.

	c.  Since being discharged, she has received two driving while under the influence 
charges.  She has sought court-mandated treatment for her substance abuse issues but 
has struggled to seek proper treatment.  She can’t keep a relationship and constantly 
has flashbacks of what happened, which increases her drinking.  She was young and 
was never given the opportunity to receive any type of help for her trauma, mental 
health, and/or substance abuse issues.

3.  The applicant enlisted in the Regular Army on 19 September 2005.

4.  The applicant accepted non-judicial punishment on 15 August 2007, under the 
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully 
using marijuana between on or about 1 July 2007 and on or about 1 August 2007.

5.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 22 August 2007, 
shows the applicant was psychiatrically cleared to understand and participate in board 
proceedings deemed necessary by command.

6.  The applicant's immediate commander notified the applicant on 5 September 2007 of 
his intent to initiate separation actions against her under the provisions of Army 
Regulation 635-200 (Active Duty Enlisted Administrative Separations),  
paragraph 14-12c, by reason of misconduct – commission of a serious offense.

7.  The applicant waived her right to consult with counsel on 6 September 2007.  She 
was advised of the basis for the contemplated actions to separate her and of the rights 
available to her.  She elected not to submit a statement in her own behalf.

8.  The applicant's immediate commander formally recommended her separation from 
service, under the provisions of Army Regulation 635-200, Chapter 14, by reason of 
misconduct.  Her chain of command recommended she receive an honorable discharge 
characterization.

9.  The separation authority approved the recommended discharge on 7 September 
2007 and directed the issuance of a DD Form 257A (General Discharge Certificate).

10.  The applicant was discharged on 12 September 2007.  Her DD Form 214 confirms 
she was discharged under the provisions of Army Regulation 635-200,  
paragraph 14-12c, by reason of misconduct (serious offense).  Her service was 
characterized as under honorable conditions (general).

11.  The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade 
of her discharge.  The ADRB considered her request on 19 August 2010, determined 
she was properly and equitably discharged, and denied her request for relief.

12.  The applicant provides:

	a.  Two witness statements, attesting to her mood, behavioral changes, and 
problems with excessive drinking.

	b.  An independent medical evaluation, dated 1 December 2020, which opined the 
applicant’s claimed and current diagnosis of post-traumatic stress disorder (PTSD) with 
panic attacks was more likely than not related to her being the victim of military sexual 
trauma.

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

14.  MEDICAL REVIEW:

    a.  The applicant is applying to the ABCMR for her under honorable conditions 
(general) discharge be upgraded to an honorable discharge.

    b.  The applicant states:

(1)	One Friday evening while assigned to her first duty station, she went to a 
gathering in a male Soldier’s room.  She was given a drink, which was some type 
of punch.  She recalls having a few more drinks and not feeling well.  She made 
it back to her room to lie down.  When she woke up a non-commissioned officer 
(NCO) who had attended the party was on top of her.  She tried to push him off 
of her and said stop but then she blacked out again.

(2)	The next morning, she woke up alone in her room.  Her private area was 
extremely sore as well as her thighs.  She never said anything to anyone 
because she thought they wouldn’t believe her.  The course of the next few 
months included feelings of suicide and frequent trips to the medical clinic for 
sexually transmitted disease tests.  Her alcohol usage increased and later turned 
into drug usage as well.  She was eventually separated due to misconduct and 
received a general discharge.

    c.  The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor was 
asked to review this case. Documentation reviewed includes:
*	DD Form 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552), dated 8 December 2020, with self-
authored statement
*	DD Form 214 (Certificate of Release or Discharge from Active Duty), for the 
period ending 12 September 2007
*	Secretary of Defense Memorandum, dated 3 September 2014 [Hagel 
Memorandum]
*	Department of Veterans Affairs (VA) Form 21-0781a (Statement in Support of 
Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD) 
Secondary to Personal Assault, dated 10 September 2020 (10 pages)
*	VA Form 21-526EZ (Application for Disability Compensation and Related 
Compensation Benefits), dated 10 September 2020
*	Article, printed on 24 November 2020
*	Statements in Support of Claim, undated (two)
*	Official Military Personnel File separation processing documents (36 pages)
*	Personal Health Information documents (55 pages)
*	Virginia Judiciary Traffic Division Case Information (5 pages)
*	Psychiatric Evaluation, dated 1 December 2020 (10 pages)

    d.  The VA electronic medical record, Joint Legacy Viewer (JLV), was reviewed.
    e.  The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health 
Artifacts Image Management Solutions (HAIMS) were reviewed. 
    f.  The ABCMR Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  The ROP indicates that the applicant entered military 
service on 19 September 2005 and was discharged on 12 September 2007.  Her 
DD Form 214 confirms she was discharged under the provisions of Army Regulation 
635-200, paragraph 14-12c, by reason of misconduct (serious offense).  Her service 
was characterized as under honorable conditions (general).

    g.  The applicant accepted non-judicial punishment on 15 August 2007, under the 
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully 
using marijuana between on or about 1 July 2007 and on or about 1 August 2007.

    h.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 22 August 2007, 
shows the applicant was psychiatrically cleared to understand and participate in board 
proceedings deemed necessary by command.

    i.  The applicant's immediate commander notified the applicant on 5 September 2007 
of his intent to initiate separation actions against her under the provisions of Army 
Regulation 635-200 (Active Duty Enlisted Administrative Separations),  
paragraph 14-12c, by reason of misconduct – commission of a serious offense.

    j.  The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade 
of her discharge.  The ADRB considered her request on 19 August 2010, determined 
she was properly and equitably discharged, and denied her request for relief.

    k.  The applicant provides an independent medical evaluation, dated 1 December 
2020, which opined the applicant’s claimed and current diagnosis of post-traumatic 
stress disorder (PTSD) with panic attacks was more likely than not related to her being 
the victim of military sexual trauma.

    l.  AHLTA contains Behavioral Health diagnoses of Cannabis Abuse and Adjustment 
Disorder.

    m.  JLV contains an additional BH diagnosis of PTSD.

    n.  The applicant is 70 service connected for PTSD.

    o.  After reviewing the available information, it is the opinion of the ARBA BH Advisor 
that the applicant has a mitigating diagnosis of PTSD due to MST. The applicant has a 
service connected disability rating of 70% for PTSD. The applicant met retention 
standards at the time of discharge. Under liberal guidance, PTSD due to MST is a 
mitigating factor for her misconduct (drug usage). It is the recommendation of the ARBA 
BH Advisor that the characterization of the applicant’s discharge be upgraded to 
“Honorable” and the narrative reason for her discharge be changed to “Secretarial 
Authority”.



BOARD DISCUSSION:

1.  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 claim and the review and conclusions of the ARBA BH Advisor. 

2.  The Board concurred with the conclusion of the medical advising official regarding 
her misconduct being mitigated by PTSD.  Based on a preponderance of evidence, the 
Board determined that the applicant's character of service should be changed to 
honorable and the reason for her separation should be changed to Secretarial authority.  


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:X	:X	:X	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:

*    Item 24 – honorable 
*    Item 25 – AR 635-200, chapter 5
*    Item 26 – KFF 
*    Item 28 – 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, 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 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 sets forth the basic authority for the separation of enlisted 
personnel.  The version in effect at the time provided that:

	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.  Chapter 14 of this regulation established policy and prescribed procedures for 
separating members for misconduct.  Specific categories included minor disciplinary 
infractions, a pattern of misconduct, commission of a serious offense, conviction by civil 
authorities, desertion, or absences without leave.  Action would be taken to separate a 
member for misconduct when it was clearly established that rehabilitation was 
impracticable or was unlikely to succeed.  A discharge under other than honorable 
conditions (UOTHC) was normally considered appropriate.  However, the separation 
authority could direct a general discharge if merited by the Soldier's overall record.

3.  The Secretary of Defense directed the Service Discharge Review Boards (DRB) and 
Service Boards for Correction of Military/Naval Records (BCM/NR), on 3 September 
2014 [Hagel Memorandum], 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.  The Acting Principle Deputy Under Secretary of Defense (Personnel and Readiness) 
provided clarifying guidance to Service DRBs and Service BCM/NRs on 24 February 
2016 [Carson Memorandum].  The memorandum directed the BCM/NRs to waive the 
statute of limitations.  Fairness and equity demand, in cases of such magnitude that a 
Veteran's petition receives full and fair review, even if brought outside of the time limit.  
Similarly, cases considered previously, either by DRBs or BCM/NRs, but without benefit 
of the application of the Supplemental Guidance, shall be, upon petition, granted de 
novo review utilizing the Supplemental Guidance.

5.  The Under Secretary of Defense (Personnel and Readiness) provided clarifying 
guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta 
Memorandum].  The memorandum directed them to give liberal consideration to 
Veterans petitioning for discharge relief when the application for relief is based in whole 
or in part on matters relating to mental health conditions, including PTSD, traumatic 
brain injury (TBI), sexual assault, or sexual harassment.  Standards for review should 
rightly consider the unique nature of these cases and afford each Veteran a reasonable 
opportunity for relief even if the sexual assault or sexual harassment was unreported, or 
the mental health condition was not diagnosed until years later.  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 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.

	a.  Guidance documents are not limited to UOTHC discharge characterizations but 
rather apply to any petition seeking discharge relief including requests to change the 
narrative reason, re-enlistment codes, and upgrades from general to honorable 
characterizations.
	b.  An honorable discharge characterization does not require flawless military 
service.  Many veterans are separated with an honorable characterization despite some 
relatively minor or infrequent misconduct.

	c.  Liberal consideration does not mandate an upgrade.  Relief may be appropriate, 
however, for minor misconduct commonly associated with mental health conditions, 
including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual 
harassment; and some significant misconduct sufficiently justified or outweighed by the 
facts and circumstances.

6.  The Under Secretary of Defense (Personnel and Readiness) issued guidance to 
Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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 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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20210005676


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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