IN THE CASE OF: BOARD DATE: 21 September 2021 DOCKET NUMBER: AR20210008393 APPLICANT REQUESTS: Her under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or 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 19 November 2020 * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 19 November 2020 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, in effect, she was not knowledgeable. She did not have people educated enough around her to guide her. She suffered from depression and was not aware of it. She did not have a good support system. She suffered with post-traumatic stress disorder (PTSD), from an incident that occurred in Korea of 1989. 3. The applicant enlisted in the Regular Army on 13 July 1988. 4. The applicant was reported absent without leave (AWOL) from her advanced individual training (AIT) unit at Fort Gordon, GA, from on or about 15 November 1988 through on or about 17 November 1988. 5. The applicant served in the Republic of Korea from on or about 7 January 1989 through on or about 30 December 1989. Upon the completion of her service in Korea, she was assigned to the Pentagon Operations Company, 1101st Signal Brigade, Fort Myer, VA, with duty at the U.S. Army Information Systems Command, Pentagon, Washington, DC. 6. Court-martial charges were preferred against the applicant on 7 September 1990, for violations of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) shows she was charged with being AWOL, from on or about 18 April 1990 through on or about 6 September 1990. 7. The applicant declined a medical examination for separation from active duty. 8. The applicant consulted with counsel on 12 September 1990 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a UOTHC discharge; and the procedures and rights that were available to her. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In her request for discharge, she acknowledged her understanding that by requesting discharge, she was admitting guilt to the charge against her, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. She further acknowledged her understood that 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 Veterans Administration, and she could be deprived of her rights and benefits as a veteran under both Federal and State laws. b. She was advised she could submit any statements she desired in her own behalf. Her election shows she declined to submit a statement in her own behalf. 9. The separation authority approved the applicant's request for discharge on 12 October 1990, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and further directed her reduction to the lowest enlisted grade and the issuance of a UOTHC discharge. 10. The applicant was discharged on 25 October 1990, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. Her DD Form 214 confirms she was discharged in the lowest enlisted grade and her service was characterized as UOTHC. 11. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 12. The applicant's record is void of documentation that supports her alleged PTSD. 13. The Board should consider the applicant's statement in accordance with the published equity, injustice, and 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 may have existed during or might have been aggravated by military service, and that the condition or experience may excuse or mitigate the discharge. 14. MEDICAL REVIEW: a. The applicant is applying to the Army Board for Correction of Military Records (ABCMR) for her under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or an honorable discharge. b. The applicant states, in effect, she was not knowledgeable. She did not have people educated enough around her to guide her. She suffered from depression and was not aware of it. She did not have a good support system. She suffered with post- traumatic stress disorder (PTSD), from an incident that occurred in Korea of 1989. c. The ABCMR 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 19 November 2020 * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 19 November 2020 d. VA electronic medical record, Joint Legacy Viewer (JLV) was reviewed. e. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) were not reviewed as they were not in use at the time of service. 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 13 July 1988 and was discharged on 25 October 1990, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. Her DD Form 214 confirms she was discharged in the lowest enlisted grade and her service was characterized as UOTHC. g. The applicant was reported absent without leave (AWOL) from her advanced individual training (AIT) unit at Fort Gordon, GA, from on or about 15 November 1988 through on or about 17 November 1988. h. The applicant served in the Republic of Korea from on or about 7 January 1989 through on or about 30 December 1989. Upon the completion of her service in Korea, she was assigned to the Pentagon Operations Company, 1101st Signal Brigade, Fort Myer, VA, with duty at the U.S. Army Information Systems Command, Pentagon, Washington, DC. i. Court-martial charges were preferred against the applicant on 7 September 1990, for violations of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) shows she was charged with being AWOL, from on or about 18 April 1990 through on or about 6 September 1990. j. The applicant declined a medical examination for separation from active duty. k. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. l. JLV contains a Behavioral Health diagnosis of Anxiety Disorder, unspecified. m. The applicant has a service connection of 10% for Tinnitus effective date MAY 2019. n. The first BH encounter noted in her available medical record dated 16 AUG 2019 notes that her chief complaint is stress both at work and at home. An encounter dated 5 SEP 2019 notes that she was feeling more calm. Encounter from 18 SEP 2019 notes: Veteran reported she has not been sleeping well the past few nights. She stated she has been having dreams about “bad things” happening to her. She noted she has been using the breathing and progressive muscle relaxation exercises she and Dr. Taylor reviewed and it helps ease her anxiety throughout the day. She also noted being nervous about her upcoming AMH intake, stating, “I just don't know what to expect”. o. Her initial Ambulatory Mental Health consult (AMH) dated 9 OCT 2019 noted: (1) “Looking back on my life, I have had mental issues throughout my life, but I didn't know. I have always felt paranoid and not able to trust, and create stories in your mind of things that might happen to you. Feel like danger is always waiting. Since 1990s, been getting angry..been through a lot”. The patient has been married three times, from 2001-2003, from 2008-2013, and in 2015 and she remains married. She reported that her “paranoia and anxiety” resulted in the divorce from her first husband. (2) She reported that she can't remember if she was treated for mental health issues while in the Army, but reported that after she witness an attempted suicide of a roommate (found her in the closet with a gun in her hands) while she was stationed in Korea, she was granted leave, returned to Louisiana, overdosed on pills, and was hospitalized for two days in Zachary at Lane Memorial Hospital. She reported that she returned to Korea and was unsure if she received any follow-up mental health care while there. She reported that upon return to Korea, she was required to reside in the same room in which her former roommate attempted to kill herself. She also expressed uncertainty regarding treatment for substance use problems while in the military. p. The applicant’s diagnosis following this evaluation was Major Depression, moderate with psychotic features, currently well managed and Unspecified Anxiety Disorder, with limited-symptom attacks. The provider noted that the applicant had, “No gross manifestation of behavior or thought processes that contraindicate management of her personal affairs and making health care related decisions.” q. The applicant was evaluated for PTSD but did not meet diagnostic criteria for diagnosis. r. While the applicant stated she has PTSD there is no indication that she has a PTSD diagnosis from available records. s. Additionally, while the applicant suggests that she was under a great deal of distress from the attempted suicide of her roommate, but records indicate work and home stress as the predominate reasons for her seeking BH treatment. t. It should also be noted that the applicant went AWOL once before finding her roommate in the closet with a gun, and then again afterwards, indicating more of a pattern of behavior and not as a result of a BH disorder. u. After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that although the applicant has a BH diagnosis it is not a mitigating factor for her misconduct. The applicant met retention standards at the time of discharge. The applicant has a service connection of 10% (Tinnitus). Under liberal guidance, the applicant does not have any mitigating BH factors for her misconduct (AWOL). BOARD DISCUSSION: 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, her record of service, the frequency and nature of her misconduct, and the reason for her separation. The Board considered the medical records and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. 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. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XXX :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 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. 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 provided that a member who had committed an offense or offenses, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 3. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), 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) AR20210008393 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1