ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  22 October 2021 DOCKET NUMBER:  AR20210011714 


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

•DD Form 293 (Application for the Review of Discharge from the Armed Forces ofthe United States), dated 5 January 2021

•DD Form 149 (Application for Correction of Military Record Under the Provisionsof Title 10, U.S. Code, Section 1552), dated 5 January 2021

•A written statement made during her period of service, dated betweenSeptember 1991 and March 1993; with a second undated hand-written statement

•DD Form 214 (Certificate of Release or Discharge from Active Duty), for theperiod ending 29 November 1993

•Department of Veterans Affairs (VA) eBenefitshttps://eauth,va.giv/benefits/disabilities printout, dated 3 January 2021



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 MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states in effect, she was not treated the same as male Soldiers andwas harassed by her superiors for not allowing sexual favors.  She reported to Germanyin September 1991 and was assigned to Headquarters and Headquarters Battalion32nd Army Air Defense Command (AADCOM).  She was further attached to the 440thSignal Battalion in military occupational specialty (MOS) 94B (Food Service Specialist).This is where her problems started, because she would not sleep with her non-commissioned officers (NCOs).  She worked 12 hour days with no time off and was sentto the field on training missions for days.  She took leave; at the end of her leave, shereported to Fort Knox, KY and asked to be reassigned.  She was given the choice of anhonorable discharge or a court-martial.

3.The applicant service record contain a DD Form 214 for the period ending21 October 1981.  This form shows she entered active duty on 28 January 1980 andwas honorably released from active duty on 21 October 1981, under the provisions ofArmy Regulation 635-200 (Personnel Separations – Enlisted Personnel),paragraph 6-10, by reason of parenthood of married service women/sole parent.  Shewas credited with completing one year, eight months and 24 days of net active service.

4.The applicant enlisted in the Regular Army on 15 March 1990, with the enlistmentoption for MOS 98C (Signal Intelligence Analysis).  She was academically disqualifiedfor this MOS on 5 June 1991 and sent for training as a Food Service Specialist.  Uponcompletion of her initial entry training, she was assigned to the Republic of Germany on3 September 1991.  She was further assigned to HHB, 32nd AADCOM on 6 September1991.  Her service record does not show her attachment to the 440th Signal Battalion.

5.The applicant extended her enlistment on 19 March 1992, to meet the serviceremaining requirements for a with-dependent tour.  Her request for a with-dependenttour was approved effective 20 March 1992.

6.The applicant’s service record shows the following:

a.She submitted a DA Form 31 (Request and Authority for Leave), wherein sherequested 25 days of leave from 26 May 1993 through 19 June 1993.  She signed in off of leave on 18 June 1983, at Fort Knox, KY.   

b.The following orders issued by Headquarters, U.S. Armor Center and Fort Knox,Fort Knox, KY:  

•Orders Number 169-00201, on 18 June 1993; showing she was attached tothe 22nd Replacement Detachment for 10 days, effective 18 June 1993

•Orders Number 179-00202, on 28 June 1993; showing her attachment to the22nd Replacement Detachment was changed from 10 days to 20 days, thesame day

•Orders Number 181-00201, on 30 June 1993; showing she was releasedfrom her attachment to the 22nd Replacement Detachment, effective 1 July1993, and was ordered to return to her parent unit no later than 7 July 1993



c.DA Form 2823 (Sworn Statement), dated 16 July 1993; from her parent unitshowing she did not return on 8 July 1993, as directed from her attached unit.  

d.DA Form 4187-E (Personnel Action), showing her duty status was changed fromabsent without leave (AWOL) to dropped from rolls (DFR) on 8 August 1993.  

e.DA Form 4354 (Commander’s Report of Inquiry/Unauthorized Absence), dated9 August 1993; showing the following, in effect:  

SPC F_ was not happy with her superiors, or her place of duty.  She believed  that no one was listening to her problems.  The situation she was discontent with  was thoroughly investigated.  Corrective actions were taken.  SPC F_ was not   satisfied with the corrective actions taken.  She had an approved leave submitted before the investigation was complete.  She may have thought the only way to fix or deal with her personal problems at work, and home was to go on leave and  never return.   

f.DA Form 4187 (Personnel Action) showing her status was changed from DFR toattached present for duty on 24 August 1993; when she surrendered to military authorities at Fort Knox, KY.   

g.She completed an admission of her AWOL for administrative purposes on24 August 1993.  

7.Court-martial charges were preferred against the applicant on 26 August 1993, forviolations 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 9 July1993 through on or about 24 August 1993.

8.The applicant consulted with legal counsel on or about 26 August 1993, and wasadvised of the basis for the contemplated trial by court-martial; the maximumpermissible punishment authorized under the UCMJ; the possible effects of a UOTHCdischarge; and the procedures and rights that were available to her.

a.Subsequent to receiving legal counsel, the applicant voluntarily requesteddischarge under the provision of Army Regulation 635-200, Chapter 10, for the good of the service.  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 she 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 further understood that there were no automatic up grading nor review by aGovernment agency of a less than honorable discharge and that she must apply to either the Army Discharge Review Board (ADRB) or the ABCMR if she wished for a review of his discharge.  She realized that the act of consideration by either board did not imply that her discharge would be upgraded.   

c.She elected to submit the following statement in her own behalf:









I am writing this statement to request a discharge under honorable conditions due to the fact that I was in a very poor duty section where there was poor working conditions, continuous sexual harassment, no NCO leadership favoritism, misappropriations, and inconsistencies.I worked very hard in the six years I was in the military and have a clean record up until now that I went AWOL.  I also tried to rectify these matters by utilizing my chain of command, going to the IG but to no avail.  Nothing ever changed although matters had been proven.I finally came home on leave and saw my congressman who is now investigating these matters in full.Sir in the 21 months that I worked in this dining facility, there were a number of Chapter 10s that I can recall and possibly more.  There are a lot of potentially good Soldiers giving up because of apathy in the chain of command over there and I personally really hate to see this happen.In addition to the above statement, I became totally frustrated when I was told of an NCO commenting that if “F_ is not f_ing she will not be promoted.”  I have 3 sworn statements attesting to this.  I have also forwarded this information to y congressman the office of F_ and is now pending investigation.

9.The applicant’s commander recommended approval of her request for discharge on8 October 1993, under the provisions of Army Regulation 635-200, Chapter 10, for thegood of the service – in lieu of trial by court-martial, with an UOTHC discharge.  Herintermediate commander endorsed the request the same day and recommended ageneral discharge.  He noted there did not appear to be any reasonable ground tobelieve that the she is, or was, at the time of her misconduct, mentally defective,deranged or abnormal.

10.The separation authority approved the applicant's request for discharge on25 October 1993, under the provisions of Army Regulation 635-200, Chapter 10, anddirected her separation with a general discharge.

11.The applicant was discharged on 29 November 1993, under the provisions of ArmyRegulation 635-200, Chapter 10, in lieu of trial by court-martial.  The DD Form 214 shewas issued confirms her service was characterized as under honorable conditions. Shewas credited with completing three years and seven months of net active service thisperiod.

12.The applicant was charged due to the commission of an offense punishable underthe UCMJ with a punitive discharge.  Subsequent to being charged, she consulted withcounsel and requested discharge under the provisions of Army Regulation 635-200,Chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial bycourt-martial.

13.The applicant's records are void of documentation corroborating her contentionsthat she was sexually harassed or treated differently than other Soldiers during herservice.  She does not provide and her service records does not contain the three swornstatements that she contends attest to the harassment she suffered.

14.The applicant provides the following for consideration:

•two pages of complaints she made about her chain of command while she wasserving [found in service records]

•a hand written statement to corroborate her assertion of sexual harassment [nota sworn statement, witnessed, or in her service records]

•VA eBenefits disabilities printout, showing she was rated for service connecteddisabilities of 50 percent (%) for other specified trauma and stressor relateddisorder (Post-Traumatic Stress Disorder (PTSD) - Personal Trauma); and 10%for tinnitus



15.The Board should consider the applicant's statement in accordance with thepublished equity, injustice, and clemency determination guidance.  Boards are to giveliberal consideration to Veterans petitioning for discharge relief when the application forrelief is based in whole or in part on mental health conditions, including PTSD.  TheVeteran’s testimony alone, oral or written, may establish the existence of a condition orexperience, that the condition or experience may have existed during or might havebeen aggravated by military service, and that the condition or experience may excuse ormitigate the discharge.

16.MEDICAL REVIEW:

The applicant is applying to the ABCMR requesting discharge upgrade contending that the misconduct leading to her Under Honorable Conditions (General) discharge was due to sexual harassment (MST) she experienced and PTSD she developed during her time in service. 
a.The Agency psychologist was asked by the ABCMR to review this request.Documentation reviewed includes the applicant’s completed DD149 and supporting documentation and her military separation packet. The VA electronic medical record, Joint Legacy Viewer (JLV) was also reviewed. The military electronic medical record (AHLTA) was not reviewed as it was not in use during her time in service. No hard copy military medical records or civilian medical documentation was provided for review.  
b.Review of the applicant’s military documentation indicates that she enlisted in theRegular Army on 28 Jan 1980 and was honorably released from active duty on 21 Oct 1981 with narrative reason, parenthood of married service woman/sole parents. She reenlisted in the Regular Army on 15 Mar 1990. She was assigned overseas to Germany from 03 Sep 1991 - 02 Sep 1993. During her service, she was awarded the Army Commendation Medal, Army Achievement Medal, National Defense Service Medal, and Overseas Service Ribbon. Her job assignment was as a Food Service Specialist. A Commander’s Report of Inquiry/Unauthorized Absence, dated 09 Aug 1993 indicated, “SPC Foster was not happy with her superiors or her place of duty. She believed that no one was listening to her problems. The situation she was discontent with was thoroughly investigated. Corrective actions were taken…She may have thought the only way to fix or deal with her personal problem at work, and home, was to go on leave and never return.” A Charge Sheet cited her for being absent without leave (AWOL) from 09 - 24 Aug 1993. She initiated a Request for Discharge for the Good of the Service, dated 26 Aug 1993, which was subsequently approved. She received an Under Honorable Conditions (General) discharge on 29 Nov 1993 with narrative reason, In Lieu of Trial by Court-Martial.   c.She submitted a statement (undated) which noted, “I am writing this statement torequest a discharge under honorable conditions, due to the fact that I was in a very poor duty section where there was poor working conditions, continuous sexual harassment, no NCO leadership, favoritism, misappropriation and inconsistencies…I became truly frustrated when I was told that ‘if Foster is not (sexual expletive), she will not be promoted.” d.The VA electronic medical record, Joint Legacy Viewer (JLV) indicated a 60%service connected disability with PTSD 50% and Tinnitus 10%. A VA Compensation and Pension Examination, Disability Benefits Questionnaire, dated 10 May 2018 indicated, “’the veteran served as a food service specialist in Germany. She reported that she was sexually harassed at her duty station and she felt intimidated and fearful. She submitted her grievances to her chain of command but nothing was done. She reported that she went AWOL and stated she would not go back unless her duty station was changed…The Veteran’s current symptoms meet the DSM-5 criteria for a diagnosis of ‘Other Specified Trauma – and Stress Related Disorder.’ The Veteran’s symptoms were attributed to the experience of being sexually harassed while at a duty station in Germany.’” The Problem List included Posttraumatic Stress Disorder, Unspecified (27 Sep 2018); Major Depressive Disorder, Single Episode, Unspecified (27 Sep 2018); Anxiety Disorder, Unspecified (27 Sep 2018); Other Specified Anxiety Disorder (03 May 2018); Adjustment Disorder with Depressed Mood (03 May 2018); Depression (30 Jul 2015); and Insomnia (05 Mar 2010).     e.Based on the available information and in accordance with the LiberalConsideration guidance, it is the opinion of the Agency psychologist that the applicant has mitigating Behavioral Health conditions, PTSD/MST. As there is an association between PTSD/MST and avoidant behavior, there is a nexus between applicant’s symptoms and her AWOL episode from her unit. Chronological review of her military career indicates a dramatic change in the applicant’s motivation, temperament and level of instability occurred during her time in service. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers who experience multiple MST events and develop PTSD in a noncombat military environment. A discharge upgrade is recommended. 

BOARD DISCUSSION: 

After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, her record of service, the frequency and nature of her misconduct, the reason for her separation and whether to apply clemency. Based upon the medical review, a preponderance of evidence, and guidance for consideration of discharge upgrade requests, the Board determined that the character of service the applicant received upon separation should be corrected as a matter of clemency.   

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

:XXX :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 a DD Form 214 for the period ending 29 November 1993 showing her character of service as Honorable. 


P120#yIS1


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 militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.
2.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.  The version in effect at the time provided that:

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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 Soldiers 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//