IN THE CASE OF: BOARD DATE: 14 December 2022 DOCKET NUMBER: AR20220005486 APPLICANT REQUESTS: upgrade of her under honorable conditions (general) discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge), with personal statement 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 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 did not know what was wrong with her during the time of her service. She was raped by superiors and unit members and was always being sexually harassed because of her very large breasts. The Department of Veterans Affairs (DVA) recently increased her disability rating to 30 percent (%) as a result of sexual trauma in the Army. The applicant indicates on her application that post- traumatic stress disorder (PTSD) and sexual assault/harassment are related to her request. 3. The applicant enlisted in the Army National Guard of the United States on 20 August 1984 for a period of 8 years; with duty in the National Guard (ARNG). 4. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she entered active duty on 1 October 1984. Upon completion of initial active-duty training, she was released from active duty on 23 February 1985 and transferred to the control of the ARNG. Her service during this period was characterized as honorable. 5. The applicant enlisted in the Regular Army on 19 August 1986 for a period of 3 years. She served in military occupational specialty 94B (Food Service Specialist). 6. A DA Form 4187 (Personnel Action) shows she was advanced from the rank/grade of private first class/E-3 to specialist four/E-4, effective 1 October 1988. 7. On 31 January 1989, the applicant reenlisted in the Regular Army for a period of 4 years. She was subsequently reassigned to a unit in Germany. 8. The applicant's record is void of documentation showing the facts and circumstances regarding her administrative separation under the provisions of Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel), Chapter 14, Paragraph 14-12a (Misconduct – Minor Disciplinary Infractions). However: a. Orders 325-060, issued by Headquarters, U.S. Army Training Center and Fort Dix, Fort Dix, New Jersey on 21 November 1991 show she was discharged from the Regular Army in the rank/grade of private/E-2, effective 21 November 1991. b. A DD Form 214 shows she was involuntarily discharged from active duty on 21 November 1991 in the grade of E-2. Her DD Form 214 shows in: (1) block 12 (Record of Service) – She completed 5 years, 3 months, and 3 days of net active service this period. (2) block 13 (Decorations, Medals, Badges, Citations and Campaign awarded or authorized) - She was awarded or authorized the Army Good Conduct Medal, National Defense Service Medal, Army Service Ribbon, and the Overseas Service Ribbon. (3) block 18 (Remarks) - she had an immediate reenlistment for the period of 19 August 1986 until 30 January 1989. (4) block 24 (Character of Service) - her characterization of service was Under Honorable Conditions (General). (5) block 25 (Separation Authority) - the authority for her separation was Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), Paragraph 14-12a. (6) block 26 (Separation Code) - her Separation Program Designator (SPD) code as "JKM." (7) block 27 (Reentry Code) - her reentry eligibility (RE) Code as "3." (8) block 28 (Narrative Reason for Separation) - her reason for separation was "Misconduct – Minor Disciplinary Infractions." 9. The applicant's record is void of and she has not provided any evidence to support her claim of sexual assault/harassment and PTSD diagnosis during her period of service. 10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. 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 merited by the Soldier's overall record. 11. Army Regulation 15-185 (ABCMR) provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice has occurred by a preponderance of the evidence. It is not an investigative body. 12. 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. 13. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 14. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of her general discharge to honorable. 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) Applicant asserts that she was raped by superiors and unit members and was subject to sexual harassment. She recently received VA disability increase to 30% due to her MST. Her application indicates PTSD and sexual assault/harassment related to her request. (2) She initially enlisted into the ARNG on 20 August 1984. (3) She enlisted into the RA on 19 August 1986. (4) The record is void of documentation showing the facts and circumstances regarding her separation via AR 635-200 Chapter 14-12a (misconduct, minor infractions). However, records indicate she was involuntarily discharged as an E- 2 effective 21 November 1991 (under honorable conditions, general). (5) The applicant’s record is void of, and she has not provided any, evidence to support her claims of sexual assault/harassment and PTSD diagnosis during her period of service. c. AHLTA was not in use as an EMR at the time of her service. d. A review of VA records via JLV indicates a veteran by name of Angelina Ufomba with this SSN, who is 30% service connected for PTSD. A specific C&P note was not located in the VA record, but the service connection as above is sufficient. PTSD Clinic note of 28 April 2020 describes “symptoms of PTSD following MST” and indicates no prior history of mental health care for trauma. Symptoms included flashbacks and nightmares, problematic sleep, hypervigilance and being on guard especially around men, “she is unable to remember aspects of the assault and the years following,” and history of guilt/shame; “her husband only recently found out about the MST after he found paperwork in their home. Symptoms of PTSD also contributed to a loss of rank and her decision to leave military service. She experienced a fear of backlash if she spoke up at that time.” Numerous additional MH contacts are noted in the record with most recent 2 November 2022. e. Application packet and supporting documents were reviewed. She asserts PTSD and sexual assault/harassment as issues/conditions related to her request. iPERMS was reviewed to determine if there were additional records available, but no entry was found for her SSN. 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 asserts PTSD secondary to MST associated with her period of military service and is service connected for PTSD. 2. Did the condition exist or experience occur during military service? Yes. The applicant contends that the sexual assault/harassment events ultimately leading to her asserted diagnosis of PTSD occurred during her period of military service. She is 30% SC for PTSD by the VA. 3. Does the condition or experience actually excuse or mitigate the discharge? Unable to opine. The agency BH advisor appreciates the presence of PTSD as established through service connection and VA records. However, without more specific information associated with her circumstances of discharge, I am unable to offer an informed comment on possible mitigation. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, 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 the applicant’s record is absent specific information associated with her circumstances of discharge, A determination is unable to be made based on lack of documentation to offer an informed comment on possible mitigation. The applicant was discharged for misconduct and was provided an under honorable conditions (General) characterization of 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. 2. This Board is not an investigative body. The Board agreed the burden of proof rest on the applicant; however, she did not provide any supporting documentation and her service record has insufficient evidence to support the applicant contentions to mitigate her current discharge characterization. 3. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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: Except for the correction addressed in Administrative Note(s) below, 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 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows her DD Form 214, for the period ending 21 November 1991, is missing an important entry that may affect her eligibility for post- service benefits. As a result, amend the DD Form 214 by adding the following entry in item 18 (Remarks): CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19 AUGUST 1986 UNTIL 30 JANUARY 1989. 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. Title 10, USC, Section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice has occurred by a preponderance of the evidence. It is not an investigative body. The ABCMR considers individual applications that are properly brought before it. In appropriate cases, it directs or recommends correction of military records to remove an error or injustice. 4. Army Regulation 635-200 sets forth the basic authority for the separation 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. Paragraph 3-7b states 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 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). 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 merited by the Soldier’s overall record. 5. Army Regulation 635-5-1 provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. It states that the separation code "JKQ" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-12c, by reason of Misconduct. Additionally, the SPD/RE Code Cross Reference Table established that RE Code "3" was the proper reentry code to assign to Soldiers separated under this authority and for this reason. 6. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service 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. 7. 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. 8. 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) AR20220005486 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1