IN THE CASE OF: 
BOARD DATE: 21 November 2022
DOCKET NUMBER: AR20220002319 

APPLICANT REQUESTS: Upgrade her under honorable conditions (general) discharge and a different narrative reason for her separation. 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 293 (Application for the Review of Discharge from the U.S. Armed Forces) 
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 at the time she was discharged, she was sexually assaulted by a male Soldier in her unit. She let her direct chain of command know the details, it just kept getting worse physically. She was mentally and physically drained and it was perceived as disrespectful conduct or disrespect. Her First Sergeant probably had good intentions but the more he punished the offender, the more it escalated. The pressure of the unit witnessing her abuse daily, resulted in her need for professional help. Her discharge was unjust, her behavior at that time was from enduring bodily abuse from another Soldier of the unit. If she was moved as requested or allowed to heal in private, the Article 15s she received would not exist. 

3. 
The applicant enlisted in the Regular Army on 20 October 2009, for a 4-year term. Upon completion of training, she was awarded military occupational specialty 92F (Petroleum Supply Specialist). 

4. 
On 11 March 2011, the applicant accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to obey a lawful order issued by a military policeman, to roll her window down and put her phone down, on or about 25 February 2011. 

5. 
On 21 October 2011, the applicant accepted NJP under Article 15 of the UCMJ, for being disrespectful in language toward a First Sergeant by saying "he is a fucking dumbass," on or about 13 October 2011. 

6. 
On 22 November 2011, the applicant underwent a psychiatric evaluation. The examining psychologist noted that there was no evidence of an emotional or mental disorder of psychiatric significance to warrant disposition through medical channels; she was psychiatrically cleared for any administrative action deemed appropriate by her command. 

7. 
The applicant's immediate commander notified her on 13 February 2012 that she was initiating actions to separate the applicant under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 14-12b (Pattern of Misconduct), for her continued display of poor military bearing and failure to abide by Army standards, even after receiving two Article 15s. 

8. 
The applicant acknowledged receipt of the proposed separation notification on 13 February 2012. She was advised of the reasons for separation and of the rights available to her. She further acknowledged that she was not a victim of sexual assault for which an unrestricted report was filed within the past 24 months and that she did not believe the separation action was a direct or indirect result of the sexual assault itself or of the filing of the unrestricted report. 

9. 
On 14 February 2012, the applicant submitted a rebuttal letter to the separation authority, requesting that she be allowed to continue to serve. She noted some of her accomplishments, awards, and accolades received during her career. She stated that she understood she had failed to uphold the Army standard and live the Army values. She further stated she has been dealing with a lot of physiological issues stemming from being a victim of domestic violence. She admitted that there was no excuse for her actions, but she was not sure how to deal with her mental state. She apologized to her command, which throughout this process had done nothing but try to help her. 


10.On 21 February 2012, the applicant's immediate commander formally recommended her separation under the provisions of Army Regulation 635-200, Chapter 14-12b. 
11.Memorandum dated 15 March 2012, subject: Domestic Violence Incident of Private (PVT) (applicant) and PVT Two (PV2) ; wherein, the commander noted the applicant was assaulted by another Soldier during a domestic violence dispute. She did not desire to press charges at the time and was offered available resources. She was issued a no-contact order. 
12. 
Memorandum dated 21 March 2012, subject: Administrative Separation under Chapter 14-12b, Army Regulation 635-200 of PVT (applicant); the applicant’s Brigade Judge Advocate provided clarification regarding the events. At time of the alleged assault the applicant and PV2 were married to other individuals and were illegally cohabitating as a couple. PV2 was pending separation for misconduct unrelated to the incident. 

13. 
On 21 March 2012, the separation authority approved the recommended action and directed that the applicant’s service be characterized as general, under honorable conditions. 

14. 
The applicant was discharged on 14 May 2012. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms she was discharged under the provisions of Army Regulation 635-200, Chapter 14-12b, for pattern of misconduct. Her service was characterized as under honorable conditions (general). She completed 2 years, 6 months, and 25 days of net active service this period. She was awarded or authorized the National Defense Service Medal, Global War on Terrorism Service Medal, Army Service Ribbon, and Parachutist Badge. 

15. 
Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 

16. 
MEDICAL REVIEW: 


a. 
The applicant is applying to the ABCMR requesting an upgrade of her under honorable conditions, general, discharge characterization to honorable, and a different narrative reason for separation. She contends her misconduct was associated with MST. 

b. 
The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted into the Regular Army on 20 October 2009; 2) She received NJP under provisions of the UCMJ, Article 15 for failure to obey the lawful order of an MP (11 March 2011), and being disrespectful in language toward a First Sergeant (11 March 2011); 3) A memorandum dated 15 March 2012 shows she was assaulted by 


another soldier with her unit during a domestic violence dispute; 4) She was discharged on 14 May 2012 under provisions of AR 635-200, Chapter 14-12b, patterns of misconduct. 
c. 
The military electronic medical record (AHLTA), VA electronic medical record (JLV), and ROP were reviewed. A review of AHLTA shows the applicant first engagement with BH on 22 November 2011 at the Robinson Clinic, Fort Bragg, NC, where she was seen for a Mental Status Examination related to possible Chapter 14.12b separation. She was cleared for any administrative separation deemed appropriate by command. On the same day she was enrolled in the clinic’s anger management group, at the urging of command. The applicant attended anger management treatment from 22 November 2011 through 7 February 2012, with a working diagnosis of Other Specified Family Circumstances. A note dated 8 February 2012 shows the applicant’s therapist was contacted by her 1SG with concerns the applicant may have been a victim of domestic violence. The 1SG had been contact by the Police Department and reported the incident. The applicant denied any physical violence had occurred and requested the case closed. On 5 March 2012 the applicant was seen in the Womack Army Medical Center ED with concerns of a possible miscarriage after being assaulted by her domestic partner. An argument reportedly escalated, and the partner kicked her in the hip, punched her in the eye, and slammed her head against the hood of his car. It was noted the coupled had previous domestic incidents and no contact orders. The applicant was enrolled in the Family Advocacy Program FAP and received outpatient treatment and support through discharge from the military. During FAP sessions the applicant detailed at least five instances of abuse over the previous year that involved choking, punching, dragging her across the ground, slapping, pulling her hair out, and rape. According to the applicant, she “was afraid to leave him”. The assailant was reportedly administrative separated. 

d. 
A review of the VA electronic medical record (JLV) showed the applicant is 100 percent service-connected with PTSD secondary to MST. VA C&P Examinations dated 15 October 2013 and 5 October 2017 showed the applicant experienced multiple instances of assault and sexual abuse during her time in service, perpetrated by a live-in boyfriend who was also assigned to the same unit. The applicant detailed instances of being forcibly raped, choked, punched, slapped, and dragged across pavement, with one of the assaults requiring hospitalization. According to the applicant, she feared for her life daily but was afraid to leave because of what else he might do to her. The applicant first VA BH treatment encounter occurred on or about 5 March 2013 at the , VA, after being referred by her case-manage, from the homeless vet program. During the intake the applicant reported anxiety, anger, depressed mood family issues, suicidal ideation w/o intent, and PTSD. She was diagnosed with PTSD secondary to MST, and Depression, and scheduled for outpatient treatment. She has received outpatient treatment from 5 March 2013 to present in the form of talk therapy and pharmacological management. Over this period, her problem list has been 


amended to include diagnoses of PTSD/MST, Bipolar Disorder, and Alcohol Dependence. She has also sought VA housing assistance on several occasion during the time span. 
e. 
The applicant contends her misconduct was associated with physical and sexual assault she endured from her partner, who was a soldier within her unit. She further contends, the more the command punished the offender, the more the assaults escalated. 

f. 
Based on the available information, it is the opinion of the Agency BH Advisor that the applicant did have a condition or experience that mitigated her misconduct. 


Kurta Questions: 
1. 
Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant is 100 percent SC for PTSD secondary to MST. 

2. 
Did the condition exist or experience occur during military service? Yes. The applicant reportedly experienced multiple instances of physical and sexual assault while on active duty. 

3. 
Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant’s reported patterns of misconduct conduct appear to consist of failing to roll down her window when order by an MP, using disrespectful language toward a First Sergeant, and poor display of military bearing. There is a clear nexus between trauma-related disorders and problems with authority, changes in cognition, and decreased motivation, thus the MST mitigates the misconduct. My recommendation is that her discharge characterization be upgraded to Honorable with a narrative reason change to Secretarial Authority. 


BOARD DISCUSSION: 
After reviewing the application and all supporting documents, the Board found the 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. The Board agreed there is a clear nexus between trauma-related disorders and problems with authority, changes in cognition, and decreased motivation. The Board concurred with the advisory official who found sufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. Based on the preponderance of evidence available for review, the Board determined the evidence presented sufficient to warrant a recommendation for relief. 
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 the applicant’s DD Form 214 for the period ending 14 May 2012 showing her character of service as honorable and the narrative reason as “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. 
Section 1556 of Title 10, USC, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 

3. 
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 


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 14, paragraph 14-12b provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of this chapter. 


4. 
The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service BCM/NRs, on 3 September 2014, 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. 

5. 
The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. 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 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. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs 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 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 may be warranted based on equity or relief from injustice. 
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, 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. 

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. 


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