IN THE CASE OF: BOARD DATE: 14 December 2022 DOCKET NUMBER: AR20220004753 APPLICANT REQUESTS: An upgrade of her under honorable conditions (general) discharge and a different, presumably more favorable narrative reason for separation. Additionally, she desires a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 the military made no effort to offer or prescribe counseling or any support. She believes her superiors created and escalated the environment of harassment. The discharge is negatively affecting her ability to get a job. 3. In a separate statement, the applicant contends: a. A sergeant in her company got her pregnant and then told her he was married. He told her, if she has the baby she would be publicly humiliated, and he would get custody of the child since she was a single mother. This led her to get an abortion. The sergeant promised to her help pay for the abortion and give her a ride to the doctor. He did neither, she took care of everything alone and confided in a coworker who helped. b. She was being singled out for drug testing, which was a humiliating process. The treatment she was receiving left her severely depressed. Being only 19-years old, she had no clue what she needed medically, nor did she receive help from her command. She believes the military created an environment for her to fail. Today, Soldiers are provided counselors and other resources for support. 4. The applicant notes other mental health issues and sexual assault/harassment are related to her request, as a contributing and mitigating factor in the circumstances that resulted in her separation. 5. On 20 July 1983, the applicant enlisted in the Regular Army for a 2-year service commitment. Upon completion of training, she was awarded military occupational specialty 76Y (Unit Supply Specialist). 6. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 13 March 1984, for failure to obey a lawful order by being in a male’s room, on or about 25 February 1984. 7. The applicant was formally counseled on/for: * 20 July 1984, failure to be at 0830 and 1300 formation * 5 September 1984, payment delinquency on a deferred payment plan * 5 October 1984, striking another Soldier in the unit billets 8. On 12 October 1984, the applicant’s commander recommended the issuance of a bar to reenlistment due to the applicant's unauthorized absence from formation, failure to pay a debt, disorderly conduct, and Article 15. The bar to reenlistment was approved on 6 November 1984. 9. The applicant was formally counseled on 26 November and 28 November 1984, for being disrespectful in deportment towards a noncommissioned officer. 10. A Report of Mental Status Evaluation, dated 29 November 1984 shows the applicant had the mental capacity to understand and participate in administrative proceedings deemed appropriate by her command. 11. The applicant underwent a medical examination on 29 November 1984, she indicated that she was in good health and not on medication. 12. The applicant's commander notified the applicant on 10 December 1984 of his intent to initiate separation actions against her under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-2, for unsatisfactory performance. She acknowledged receipt the same day. 13. After consulting with counsel on 11 December 1984, the applicant was advised of the basis for the contemplated action. She acknowledged the rights available to her and the effect of waiving her rights. She elected to submit a statement in her own behalf; however, the record is void of a statement. 14. The applicant's commander formally recommended the applicant's separation from service on 11 December 1984, prior to her expiration term of service date, under the provisions of Army Regulation 635-200, Chapter 13. 15. On 4 January 1985, the separation authority approved the applicant's request for discharge and directed the issuance of a DD Form 794A (General Discharge Certificate). 16. On 14 January 1985, the applicant was discharged accordingly. Her DD Form 214 confirms she was discharged under the provisions of Army Regulation 635-200, Chapter 13, by reason of unsatisfactory performance. She was credited with 1 year, 5 months, and 25 days of net active service, with her service characterized as under honorable conditions. 17. The available record is void of and the applicant did not provide medical documents in support of her claim of mental health issues. 18. By letter dated 16 August 2022, the U.S. Army Criminal Investigation Command advised that a search of the Army criminal file indexes revealed no Military records pertaining to the applicant. 19. 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. 20. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of her under honorable conditions (general) discharge and a different narrative reason for separation. She contends she was experiencing depression, military sexual trauma (MST), and reprisal which mitigated her misconduct. 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 in the Regular Army on 20 July 1983; 2) The applicant accepted non- judicial punishment (NJP) on 25 February 1984 for failure to obey a lawful order by being in a male’s room; 3) The applicant was formally counseled for failure to be at formation, payment delinquency on a deferred payment plan, and striking another Soldier between 20 July 1984-05 October 1984; 4) She was barred from reenlistment on 06 November 1984; 5) She was formally counseled on 26 and 28 November 1984 for disrespect toward a NCO; 6) On 14 January 1985, the applicant was discharged with a Chapter 13 with her service characterized as under honorable conditions. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) was also examined. d. The applicant reported emotional distress when an NCO would not financially assist or drive her to an appointment for an abortion. She indicated the decision to have the abortion was influenced by the NCO’s comments and attitude toward her pregnancy. The applicant did not report nonconsensual sexual contact with the NCO. She also did not report additional occurrences of MST. On 16 August 2022, the U.S. Army Criminal Investigation Command revealed no military records pertaining to the applicant. e. Her description of the drug testing process appeared consistent with the standard operating procedure of collecting a urine sample. However, the frequency of her being selected to complete a drug screen was unclear. The applicant reported distress related to her living situation in billeting, and she reported feeling depressed at the time of her misconduct. A review of JLV was void of a history of treatment. The applicant did not provide hardcopy records indicating post-service treatment. The applicant is not service connected. f. Based on the available information, it is the opinion of the Agency BH Advisor the applicant did have a condition or experience that partially 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 made an assertion of depressive symptoms, MST, and reprisal. 2. Did the condition exist or experience occur during military service? Yes. The applicant made an assertion of depressive symptoms, MST, and reprisal while actively serving. 3. Does the condition or experience actually excuse or mitigate the discharge? Partially. There could be a nexus between avoidant behavior such as not reporting to formation on time and MST and depressive symptoms. Also, her increased erratic behavior of verbal disrespect could be a natural sequel to depression and the negative experiences she reported. However, depression, MST, and experiencing reprisal do not mitigate the offenses of failure to pay bills, being in a prohibited area, and striking another Soldier, as these conditions and experiences do not affect one’s ability to distinguish right from wrong and act in accordance with the right. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of her characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the medical opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of hardcopy records indicating post-service treatment, post-service achievements, or letters of reference in support of a clemency determination. The Board noted the applicant provided no post service achievements or letters of support for the Board to consider that might have mitigated the applicant’s discharge characterization. 2. The applicant was discharged for unsatisfactory performance and was provided an under honorable conditions (General) characterization of service. The record shows the applicant was credited with 1 year, 5 months, and 25 days of net active service. The Board agreed that the applicant's discharge characterization is warranted as she did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. Based on a preponderance of evidence, the Board determined that the character of service and narrative reason for separation the applicant received upon separation were not in error or unjust. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X 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 3 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 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 sets forth the requirements and procedures for administrative discharge of enlisted personnel. a. Paragraph 3-7a provides that 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. Chapter 13 provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. 3. On 3?September 2014, 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 applicant's service. 4. 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; 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 to 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. 5. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004753 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1