ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:    BOARD DATE:  5 January 2022 DOCKET NUMBER:  AR20210009610 


APPLICANT REQUESTS: reconsideration of her previous request for upgrade of her discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.Previous Application

.Previous Record of Proceedings

.Statement

.Character Reference Letters/emails

.Order of Search and Search Warrant

.Civilian Court Sentence

.Department of Veterans Affairs (VA) printout



FACTS: 

1.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's case by the Army Board for Correction ofMilitary Records (ABCMR) in Docket Number AR20170000225 on 19 December 2019.

2.The applicant states she disagrees with the Board's decision due to the statementsthat she submitted of her own as well as the Character References from those sheserved with in the 603rd Transportation, Fort Polk, LA. Every experience in herstatement is true and has caused her such despair over these past 20 yrs. It has takenthis long for her to visit this situation as she had no idea of any rights or options to fixany of this. As she previously stated, what brought her to the Veterans Building was therequest for a Military Upgrade on her discharge because that is what was promised toher, it has taunted her over the years because she was lied to.

a.After all those horrible experiences she felt that the least the Army could do ishonor an upgrade. She came into the Army with 37 College Units which granted her the grade of E-3. She was a good student and person. She questions how she would exhibit such a drastic change as to who she really was and is. The letter from Sergeant S__ clearly states that in her opinion, she was forced into something that she was not. 






As an NCO in the company she saw everything as she began to fall while under the influence of Sergeant P__. Sergeant S__ is reliable and trustworthy because she is a retired Veteran. The letter from Specialist Four B__ clearly states that she also was a victim of abuse as well as others in our unit. The letter from Private S__ speaks of Sergeant P___ being the cause of change of disposition. The letter from Private W__ spoke of the change as she was her best friend. She also made mention that everything changed when this gentleman entered her life. b. Her abuse had to had been the worst because of the drugs and sexual trauma that was forced upon her, the close to deaths experience and most of all the fear of what could happen to her if she ran or reported any of this because he was a sergeant in the unit and the Unit Chain of Command were not in her favor, they did not help her: 2 Article 15s, a summary court-martial conviction, a civil conviction for possession of cocaine. The Article 15s were primarily disobeying lawful orders and absenting herself from her unit. The summary court-martial was for breaking restrictions on 4 occasions and bad language to another NCO. The civil conviction was for possession of cocaine, which was not hers and everybody knew it. The sergeant's job was to guide her and to show her how to build and grow and point out the opportunities that were available as her journey was beginning on this new path.  c. She did not know all the facts until Mr. R__ AMVETS Service Officer said to her after she shared her story, he was actually very disturbed and said "he ruined your military career as a sergeant." She lost her rank. She requested to change units as she has gotten approval from another unit to accept her, as told by her racist first sergeant and commander. She was in the field and given nothing but a stick to do her guard duty with. She was taken out of the field and was told by Sergeant B_ that they were taking her to lunch and drove her straight to jail and told them that she was a flight risk and had the bail revoked that her grandmother paid $2,000 as they knew that she was not a flight risk. d. She was placed in the stockade and was told her first sergeant could not visit her. Sergeant P__ really wronged her. As she looks through the Police Report, she knew that she was being charged for possession of Cocaine because Sergeant P__ had placed his drugs in one of her Cassette Tape Cartridges as she had requested him to not do because there was one other time that she saw him put his stuff in her Case and because her name was on the Case which, she told him not to do that. Now that she has read the report, she realizes that he had Prescription Bottle that had her name on it with a powdery substance in it. She is quite sure that is was a Prescription for Matron as being a female were for monthly cramps. This guy was out to get her that was a whole set up as him placing his drugs in her personal containers with her name on it. This has brought so much more emotion; she just does not know what to do but hopes the Board can actually see the misfortune that she experienced in the Army.  

e.She has been ashamed all of these years to even say that she was a Soldier inthe Army. She knows that she was promised a general discharge by her first sergeant. She deserves to be proud to say that she is a Veteran. She should have been able to have the opportunity to go to School, she should have medical assistance for her kids and herself from the VA Hospital. She asks the Board to reconsider the decision.  

3.Review of the applicant's service records shows:

a.She enlisted in the Regular Army, in the rank/grade of private first class/E-3 on18 March 1987 and held military occupational specialty 88M (Motor Transport Operator).  

b.She was assigned to the 603rd Transportation Company at Fort Polk, LA. Whilethere, she accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on/for: 

.23 July 1987, disobeying a lawful order, on or about 7 June 1987; herpunishment consisted of reduction to private/E-2

.13 November 1987, absenting herself from her unit on or about 3 November1987 – 6 November 1987

.13 November 1987, three counts of disobeying a lawful order from an NCOon or about 6 November 1987

.13 November 1987, two counts of using disrespectful language towards anNCO on or about 6 November 1987; her punishment consisted of reduction toprivate/E-1



c.On 31 March 1988, she was convicted by a summary court-martial two (out offour) specifications of breaking restriction. The court sentenced her to forfeiture of $300 pay and confinement for 10 days. 

d.On 14 April 1988, the convening authority approved a lesser sentence of 6-monthsuspension of the forfeiture of pay and confinement for 10 days. The applicant was confined from 31 March 1988 through 8 April 1988. 

e.On 14 June 1988, the applicant was convicted by civil authorities for possessionof cocaine and sentenced to 6 months in jail. She had been arrested on 7 November 1987 by civilian authorities in Leesville, LA while on duty for possession of cocaine.  

f.On 8 July 1988, the applicant’s immediate commander notified the applicant of hisintent to separate her under the provisions of Army Regulation (AR) 635-200 (Personnel Separations -  Enlisted Personnel), chapter 14, paragraph 14-12c for the commission of a serious offense: Article 15, failure to repair, absent without leave, disobey a lawful 
order, repeated misconduct, summary court martial conviction, and civilian court conviction for possession of cocaine.   

g.On 8 July 1988, the applicant acknowledged receipt of the notification of theseparation action. She subsequently consulted with legal counsel who advised her of the rights available to her and the effect of waiving said rights. She submitted a conditional waiver in which she stated she voluntarily waiver consideration of her case by an administrative separation board contingent upon receiving a character of service no less favorable than general, under honorable conditions. The applicant acknowledged that:  

.she understood that she may expect to encounter substantial prejudice incivilian life if a general discharge under honorable conditions is issued to her

.she further understood that, as the result of issuance of a discharge underother than honorable conditions, she may be ineligible for many or all benefitsas a veteran under both Federal and State laws and that she may expect toencounter substantial prejudice in civilian life

.she understood that if she received a discharge certificate/character ofservice which is less than honorable, she may make application to the ArmyDischarge Review Board or the Army Board for Correction of Military Recordsfor upgrading; however, she understood that the act of her consideration byeither board does not imply that her discharge will be upgraded

.she elected not to submit a statement on her behalf



h.The applicant’s immediate commander subsequently initiated separation actionagainst the applicant for commission of a serious offense, in accordance with chapter 14-12c of AR 635-200. The chain of command recommended an under other thanhonorable conditions discharge.

i.On 10 August 1988, the separation authority disapproved the applicant’s requestfor conditional waiver and ordered her case referred to an administrative separation board for consideration. 

j.On 21 October 1988, an administrative separation board convened at Fort Polk,LA to consider whether the applicant should be separated, or retained on active duty.  
After carefully considering and weighing all of the oral and documentary evidence, the administrative separation board found the applicant did commit the following acts which constitute a pattern of misconduct: Two Article 15s, Summary Court-Martial Conviction and a civil conviction for possession of cocaine. The administrative separation board recommended the applicant be separated from the Army and her discharge be characterized as Other Than Honorable Conditions. 

k.The separation authority approved the administrative separation board's findingsand recommendation. He ordered the applicant discharged under the provisions of AR 635-200, chapter 14 and issued an Other Than Honorable Discharge Certificate.

l.The applicant was discharged from active duty on 2 December 1988. Her
DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged under chapter 14-12c of AR 635-20 for misconduct. She completed 1 year, 4 months, and 18 days of active service, with lost time from 3 to 5 November 1987, 7 to 9 November 1987, 31 March to 7 April 1988, 15 June to 5 July 1988, and 6 September to 2 December 1988.  

m.There is no evidence the applicant has applied to the Army Discharge ReviewBoard for review of his discharge within the board’s 15-year statute of limitations. 

n.On 19 December 2019, the Board considered her case. After reviewing theapplication and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board found relief was not warranted. Based upon the short term of honorable service completed prior to a lengthy pattern of misconduct, as well as a lack of sufficient corroborating evidence to the applicant’s statement, the Board concluded that the characterization of service received at the time of separation was appropriate  

4.By regulation, members are subject to separation for misconduct because of minordisciplinary infractions, a pattern of misconduct, commission of a serious offense, andconviction by civil authorities.

5.The Board should consider the applicants petition and her service record inaccordance with the published equity, injustice, or clemency determination guidance.

6.MEDICAL REVIEW:

a.Applicant is applying to the ABCMR requesting reconsideration of her previousrequest for an upgrade of her Under Other Than Honorable Conditions discharge to General Under Honorable Conditions due to military sexual trauma (MST). The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149 and supporting documents, her ABCMR Record of Proceedings (ROP), her separation military documentation, the military electronic medical record (AHLTA), and the VA electronic medical record (JLV).   

b.The ABCMR ROP outlines the details and circumstances of the applicant’s militaryhistory. She enlisted in the Regular Army on 18 March 1987 and was discharged on 2 December 1988 under the provisions of Army Regulation 635-200, Chapter 14 for 
Misconduct. The misconduct resulting in separation included two article 15s to include failure to repair, AWOL, and disobeying a lawful order; a summary court-martial conviction for two specifications of breaking restriction; and a civil conviction for possession of cocaine. 
c.Due to the period of service, no active duty electronic medical records (AHLTA)were available for review and no hard copy medical documentation from the time of service was submitted for review. 
d.Review of VA electronic medical record (JLV) indicates that the applicant is notservice connected likely due to her UOTHC discharge. Applicant has been diagnosed by the VA with Post-Traumatic Stress Disorder (PTSD) related to MST. Applicant began receiving behavioral health treatment at the VA in 2017 and consistently reported to multiple providers that she was the victim of a MST. She reported that while on active duty, she was abused by a superior officer who raped her. The VA has provided MST treatment services to applicant, including a Sexual Trauma Group that she participated in from December 2017 to May 2018.   
e.After review of all available information, applicant has been diagnosed by the VAwith PTSD related to MST. Given the nexus between avoidance, disrespect, and substance abuse and PTSD, it is the opinion of the Agency BH Advisor that there was direct association between applicant’s PTSD and the misconduct that led to her discharge. In accordance with Liberal Consideration guidance, applicant’s MST outweighs the misconduct that led to her separation. Therefore, the Agency BH Advisor recommends that the applicant’s discharge characterization be upgraded to Honorable and her narrative reason be changed to “Secretarial Authority”. 

BOARD DISCUSSION: 

The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical review 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 reviewing official. The medical reviewing found MST mitigated the misconduct that led to her discharge.  However, the Board’s review of the evidence shows she was in bad relationship, and surrounded by negative organizational culture. The applicant did not provide evidence of post-service achievements 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 amending the previous Board’s decision is not warranted. 

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

XXX XXX XX DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

The Board found 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 AR20170000225 on 19 December 2019. 

X CHAIRPERSON

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 635-200 (Personnel Separations – Enlisted Personnel), in effect atthe time sets forth the basic authority for the separation of enlisted personnel.  Chapter14 established policy and prescribed procedures for separating members formisconduct. Specific categories include minor disciplinary infractions, a pattern ofmisconduct, commission of a serious offense, and convictions by civil authorities.Action would be taken to separate a member for misconduct when it was clearlyestablished that rehabilitation was impracticable or was unlikely to succeed. A dischargeunder other than honorable conditions was normally appropriate for a Soldierdischarged under this chapter. However, the separation authority may direct a generaldischarge if such is merited by the Soldier’s overall record.

a.Paragraph 3-7a states that an honorable discharge is a separation with honorand 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.Paragraph 3-7b states that a general discharge is a separation from the Armyunder honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

2.On 3 September 2014, the Secretary of Defense directed the Service DischargeReview Boards (DRBs) and Service Boards for Correction of Military/Naval Records(BCM/NRs) to carefully consider the revised PTSD criteria, detailed medicalconsiderations, and mitigating factors, when taking action on applications from formerservice members administratively discharged under other than honorable conditions,and who have been diagnosed with PTSD by a competent mental health professionalrepresenting a civilian healthcare provider in order to determine if it would beappropriate to upgrade the characterization of the applicant's service.

3.On 25 August 2017, the Office of the Undersecretary of Defense for Personnel andReadiness issued clarifying guidance for the Secretary of Defense Directive to DRBsand BCM/NRs when considering requests by Veterans for modification of theirdischarges due in whole, or in part, to:  mental health conditions, including PTSD; TBI;sexual assault; sexual harassment.  Boards were directed to give liberal considerationto Veterans petitioning for discharge relief when the application for relief is based inwhole or in part to those conditions or experiences.  The guidance further describesevidence sources and criteria, and requires Boards to consider the conditions orexperiences presented in evidence as potential mitigation for that misconduct which ledto the discharge.

4.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records (BCM/NRs) regarding equity, injustice, or clemencydeterminations.  Clemency generally refers to relief specifically granted from a criminalsentence.  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 maybe warranted based on equity or relief from injustice.  This guidance does not mandaterelief, but rather provides standards and principles to guide Boards in application of theirequitable 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. 
 
//NOTHING FOLLOWS//