ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:   BOARD DATE: 8 February 2022 DOCKET NUMBER:  AR20210009807 
APPLICANT REQUESTS: in effect, correction of her record to show she received an honorable discharge vice a general discharge due to a military sexual assault (MST) and post-traumatic stress disorder (PTSD). 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. DD Form 293 (Application for the Review of Discharge) . DA Forms 4856 (Developmental Counseling Form), dated 30 November 2001 . DA Form 2823 (Sworn Statement), dated 12 December 2001 . DA Form 4856, dated 11 March 2002 . DD Form 214 (Certificate of Release or Discharge from Active Duty) for the 
period ending on 7 May 2002 
. Applicant’s personal statement, dated 10 August 2019 . Elmhurst and Health and Hospital Letter, dated 12 August 2020 
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 (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, she was released from active duty with a general, under honorable conditions for misconduct. She missed a number of formations and was found with alcohol on her breath, which was due to PTSD from a sexual assault and rape. She battled anxiety and depression after her MST. She reported it on various occasions and has a written statement from one of the Soldiers involved. During her basic training and advanced individual training period, she had never demonstrated any form of misconduct and would have finished her term of active duty had this incident not had take place. 

3. 
The applicant provides the following documents: 


a. A personal statement, dated 10 August 2019, which states, in effect: 
(1) 
She joined the Army right out of high school to take advantage of the GI Bill and because she had two older brothers that were serving on active duty, in the Army. Initially she was having a hard time, but felt pride because of her job and family. 

(2) 
She and a girlfriend were with some other male Soldiers; one of them was her girlfriend’s boyfriend; however, they left, which left two men alone with her. Then another man came into the room and locked the door. She was then raped vaginally and anally by all three of them. She screamed but they covered her mouth. When they were done, she could finally escape to the wall and squatted there crying. 

(3) 
She states, the men stayed there talking to themselves on how they were planning on covering it up. One of the men told her that if she said anything, no one would believe her and she would end up in an asylum. 

(4) 
After the incident, she was afraid to say anything, and she did not trust anyone. She cried all the time and had vivid nightmares. She suffered from insomnia. 

(5) 
She had told her sergeant (SGT) that she did not want one of men near her (she did not tell the SGT about the rape), but he ignored her concerns. 

(6) 
Afterwards, she had some pain and went to the hospital, where she found out she had gonorrhea and chlamydia. She did not receive any counseling or questioned even though she was distraught and crying uncontrollably. She had no female Soldiers in her chain of command to confide in. 

(7) She was then viewed as being difficult and was discharged for misconduct. 

(8) 
After her discharge from the Army, she was still distraught and went to the Elmhurst Hospital and soon learned that she contacted HIV during the attack. She later attempted suicide, which led to a 4-month hospitalization for depression. 

(9) 
She has since struggled with paranoia of men, fear, depression, suicidal thoughts, and even visual hallucinations of her attacker’s hands for over 17 years. 


(10)Sinceshe was married throughout this ordeal, when she found out about HIV, her husband left her. Although she has tried to go to school and work, it never worked out. She has been in and out of psychiatric hospitals for over 17 years. 
(11)She
gave birth to a child; however, due to her medical condition and her depression, child services took her son from her. 

(12)Sheis still in therapy and receives treatment for her medical conditions. 

b. 
Elmhurst and Health and Hospital Letter, dated 12 August 2020, states, “this is to state that the above named, [applicant], is currently enrolled in the Ambulatory Behavioral Health Services(ABHS) clinic for treatment. She has been in treatment at ABHS since 2005, referred for continued outpatient mental health services S/P a psychiatric hospitalization. She is diagnosed with PTSD and is being followed with medication management and individual psychotherapy appointments. She has been fully compliant with treatment and is currently in stable condition. This letter is to certify that she is not a danger to herself or others.” 


4. A review of the applicant’s service record shows: 
a. DA Form 1594 (Daily Staff Journal or Duty Officer’s Log), dated 29-30 November 2001, reflects an entry “[Applicant] called the CQ desk to inform the CQ that she was having (illegible) at Bldg. 900, she requested that SGT B-come and pick her up. SGT B-come and pick her up. SGT B-returns, did not find [applicant], she was instructed to go to the CQ desk at Bldg. 900 and wait for SGT Bell to pick her up. [Applicant was not at the CQ desk.” 
b. DA Forms 4856, dated 30 November 2001, shows she was counseled for the following issues: 
. Disobeying lawful directives . Failure to be at appointed place of duty . Showing up to duty with alcohol on her breath . Failure to sign in with CQ at Bldg 900 while visiting 
c. 
DA Form 1594, dated 2-3 December 2001, reflects the entry, that someone needed to inform the first sergeant (1SG) that CPL G- and the applicant were missing. It was noted that the applicant would be released when she showed up at the barracks. 

d. 
DA Form 2823, by Captain (CPT) H-, dated 8 December 2001, states, “On 08 Dec[ember] [20]01 at approximately 1535, I entered the CQ area for my barracks check. I observed on the barracks sign in log that PVT K- had signed into the barracks at 1520 to visit [applicant]. I made contact with 1SG S- to verify that [applicant] had been given a no contact order with PVT K- of 35th Brigade from CSM T-. 1SG S- verified that this was true. I had SGT M-, on duty CQ, escort [applicant] and her guest down to the CQ desk. I asked for PVT K- to give me her ID card and I made a photo copy of it. Afterwards, I explained to PVT K- that [applicant] was not to have any contact with her. I asked PVT K- to leave the building. At that point I had [applicant] change into uniform and standby at the CQ desk for 1SG S-.” 


e. DA Form 2823, dated 12 December 2001, written by the applicant, states, in effect, that she was raped, and the Criminal Investigative Division (CID) and her chain of command were informed; however, she was counseled for missing formation and for being drunk on duty. Regarding the “no contact” towards PVT K-, she was unaware that PVT K-was coming to her room. 
f. DA Form 4856, dated 11-12 March 2002, shows she was counseled for the following issues: 
. Not responding to recall on 11 March 2002 . Missing 0530 accountability formation on 11 March 2002 . Missing 0630 range accountability formation on 11 March 2002 . Missing movement to McGregor Range at 0730 on 11 March 2002 . Having alcohol on breath when 1SG V-S-and SSG B-arrived at her 
apartment at 1000 on 11 March 2002 . She had her pass privilege revoked 
g. 
DD Form 2808 (Report of Medical Examination), dated 2 April 2002, shows she had a separation examination. 

h. 
DD Form 2807-1 (Report of Medical History), dated 2 April 2002, shows she had recurrent back pain, had frequent or painful urination, and received counseling at the Alcohol and Drug Abuse Program (ADACP) for nervous issues for her drinking. 

i. 
DA Form 3822-R (Report of Mental Status Evaluation), dated 9 April 2002, reflected that she was normal, fully alert, fully oriented, anxious, clear, and her memory was good. She was diagnosed with Alcohol Abuse. They found no evidence of any mental disease or defect which would warrant a disposition through medical/psychiatric channels. She was cleared for any administrative action deemed appropriate by the command. 

j. 
DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ), dated 12 April 2002, shows she received an Article 15 for three specifications of failing to go, without authority, to her prescribed appointed place of duty. She was found guilty and received a reduction in ran to PVT, forfeitures of pay for 2 months, extra duty for 45 days, and restriction to the limits of the battery area, pla3e of duty, place of worship, dining facility, and the medical facility for 45 days. 

k. 
DA Form 669-1-R (Army Continuing Education System of Record Continuation Sheet), dated 18 April 2002, states, she was counseled that “according to Army Regulation 635-200, Soldier must complete 36 months in the active duty and must 


obtain a fully honorable discharge to be able to get the Montgomery GI Bill benefits.” 
l. 
Separation Documents, show she was recommended and approved for separation, due to Army Regulation 635-200 (Personnel Separations) , Chapter 14-12b (Pattern of Misconduct). She was given all rights afforded to her, elected not to submit any statements on her behalf, but requested counsel. 

m. 
DA Form 2-1 (Personnel Qualification Record), shows she was reduced to PVT on 12 April 2002, due to her Article 15. 

n. 
DD Form 214 (Certificate of Release or Discharge from Active Duty), shows on 7 May 2002, she was discharged with an under honorable conditions (general), due to misconduct, in accordance with chapter 14-12b of AR 635-200. She completed 1 year, 2 years, and 15 days of net active service this period. 

o. 
Medical documents, which will be reviewed and discussed by the Behavioral Health Staff at ABCMR. 


p. Military Identification Card, which is illegible. 
5. MEDICAL REVIEW: 
The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting 
documents and the applicant’s medical records in the Armed Forces Health Longitudinal 
Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following 
findings and recommendations: Documentation supports the applicant’s report of MST 
and resulting trauma symptoms. Based on liberal consideration and nexus between trauma and avoidance, substance use, and difficulty with authority, the basis for separation is mitigated. Accordingly, an upgrade with Secretarial Authority is recommended. 
a. 
The applicant was discharged on 07 May 2002 under Chapter 14-12b, Pattern of Misconduct, with a General characterization. The basis for separation included disobeying directives, failure to be at her appointed place of duty, showing up to duty with alcohol on her breath, failure to sign in with CQ, violating a no contact order, not responding to recall, missing formations, and missing movement. The applicant is requesting an upgrade to honorable contending her misconduct related to a MST with related PTSD. 

b. 
Due to the period of service, active duty electronic records. The electronic packet contained a separation physical in which the applicant endorsed counseling for alcohol use. An April 2002 Chapter Mental Status Exam (MSE) cleared the applicant with a diagnosis of Alcohol Abuse. 

c. 
The applicant is 100% service connected for PTSD related to MST. In July 2020, the applicant requested to transfer her psychiatric care to the VA. The applicant reported 10 hospitalizations with two suicide attempts, running into traffic in 2005 and attempt to light herself on fire in 2012. She was diagnosed with PTSD secondary to MST and Alcohol and Cocaine Use Disorders in remission. The applicant continues with medication management. 

d. 
The electronic packet contained a sworn statement made by the applicant in-service, dated 12 December 2001, stating she was assaulted and raped three weeks prior. The applicant indicated she notified Command and CID, but was counseled for missing formation and being drunk on duty. The applicant indicated she decided not to press charges and was then counseled on a no contact order. 

e. The applicant supplied a statement outlining the MST by three men. 

f. 
An August 2020 letter from Elmhurst Health Hospitals indicates the applicant had started treatment in 2005 after a hospitalization and diagnosed with PTSD. 


g. Kurta Questions 
(1) 
Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) Yes. The applicant experienced a MST in-service and is currently service connected for PTSD. 

(2) Did the condition exist or experience occur during military service? 

(a) 
Yes. The applicant experienced a MST in-service with resulting trauma symptoms. 

(3) Does the condition or experience actually excuse or mitigate the discharge? 

(b) 
Yes. Given the nexus between trauma and avoidance, substance use, and difficulty with authority, the basis for separation is mitigated. 


BOARD DISCUSSION: 
After reviewing the application and all supporting documents, the Board found that relief was warranted. 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, his record of service, the frequency and nature of his misconduct and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA Medical Advisor. The Board found sufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct being mitigated by PTSD. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was in error or unjust, and should be upgraded as a matter of liberal consideration. 
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 the applicant's DD Form 214 for the period 7 May 2002 to show his character of service as "Honorable." 

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. 
Title 10, U.S. 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) sets forth the basic authority for the separation of enlisted personnel. 


a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  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. 
b. Paragraph 3-7a states 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. 
3. 
PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster.  The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and provides standard criteria and common language for the classification of mental disorders. In 1980, the APA added PTSD to the third edition of its DSM nosologic classification scheme.  Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From a historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 

4. 
PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor. In fact, one cannot make a 

PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic. Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress. Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome.  Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified. Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat. Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations. 

5. 
 The fifth edition of the DSM was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and acute stress disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience.  The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms, the seventh criterion assesses functioning, and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. 

6. 
 As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD, the Department of Defense (DOD) acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldiers' misconduct which served as a catalyst for their discharge.  Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from a temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time. 


7 On 3 September 2014 in view of the foregoing information, the Secretary of Defense 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 applicants' service. 
8.  BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis. When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the following factors must be carefully considered: 
. Is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge? . Does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service? . Does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms? 
. Did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider? 
. Was the applicant's condition determined to have existed prior to military service? . Was the applicant's condition determined to be incurred during or aggravated by 
military service? . Do mitigating factors exist in the applicant's case? . Did the applicant have a history of misconduct prior to the occurrence of the 
traumatic event? . Was the applicant's misconduct premeditated? . How serious was the misconduct? 
9. 
 Although DOD acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time.  Conditions documented in the records that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge.  In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the UOTHC characterization of service.  BCM/NRs will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of UOTHC.  Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. BCM/NRs will also exercise caution in weighing evidence of mitigation in 

all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 

10. 
 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, 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. 

11. 
 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. 


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