IN THE CASE OF: BOARD DATE: 14 November 2022 DOCKET NUMBER: AR20220005642 APPLICANT REQUESTS: an upgrade of her characterization of service from under honorable conditions (general) to honorable APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 18 February 2022 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 15 August 2003 * VA Form 21-4138, Statement in Support of Claim, 17 February 2022 * Letter, County Veteran Services, 10 March 2022 * Administrative Decision, Department of Veteran Affairs (VA), undated * complete Military Service Record * complete Military Treatment Record * 427 pages of Civilian Medical Documents, UNC Health FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, 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, in effect, another Soldier sexually assaulted her, on or about 14 May 2001, negatively effecting her mental health and actions. She felt pressured into taking a Chapter 10 discharge. The discharge was unjust. 3. The applicant enlisted in the Regular Army on 15 August 2000. 4. Two DA Forms 4187 (Personnel Action) show the following changes in her duty status: * Present for duty (PDY) to Absent Without Leave (AWOL) - 14 May 2001 * AWOL to Dropped from Rolls (DFR) - 14 June 2001 5. A DD Form 458 (Charge Sheet), dated 19 June 2001, shows she was charged with AWOL from on or about 14 May 2001 and she continued to remain AWOL at the time the Charge Sheet was initiated. 6. She surrendered herself to military authorities on 18 June 2003. 7. A DD Form 458 shows court-martial charges were preferred against her on 11 July 2003, for being AWOL from on or about 14 May 2001 to on or about 18 June 2003. 8. She consulted with legal counsel on or about 28 July 2003. a. She was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and the procedures and rights that were available to her. b. After receiving legal counsel, she voluntarily requested discharge, in lieu of trial by court-martial, under the provision of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10. 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 acknowledged making this request free of coercion. She further acknowledged understanding if her discharge request were approved, she could be deprived of many or all Army benefits, she could be ineligible for many or all benefits administered by the Veteran's Administration (VA), and she could be deprived of her rights and benefits as a veteran under both Federal and State laws. c. She was advised she could submit any statements she desired in her behalf. She did not provide a statement. 9. Her record contains two Memoranda for Record: a. The Chief of Psychology Services, Womack Army Medical Center, Fort Bragg, conducted a comprehensive review of the applicant's medical history. He determined her behavioral health diagnosis made her unfit for duty, stated her condition likely predated her military service, and recommended she be chaptered out of the US Army. b. Defense Counsel, Trial Defense Services, Fort Bragg, recommended approval of the Chapter 10 discharge request due to the applicant's behavioral health condition and personal circumstances. 10. The separation authority approved the recommended discharge on 6 August 2003, directed the applicant be reduced to the lowest enlisted grade (private (PVT)/E-1), and be issued an UOTHC discharge. 11. Her DD Form 214 shows she was discharged on 15 August 2003, in lieu of trial by court-martial, under the provisions of AR 635-200, Chapter 10, in the rank/grade of PVT/E-1, with an UOTHC character of service. Her DD 214 does not reflect any personal decorations, but it does show she completed 10 months and 20 days of net active service with lost time from 14 May 2001 to 18 June 2003. 12. On 22 August 2022, the Army Review Boards Agency (ARBA), Case Management Division (CMD), requested a copy of a Redacted CID report for sexual assault/harassment and Military Police Reports (ROI) from the US Army Criminal Investigation Division (CID). CID responded on 26 August 2022, stating a search of the Army criminal file indexes revealed no records pertaining to the applicant. 13. There is no indication the applicant applied to the Army Discharge Review Board for review of her discharge within that Board’s 15-year statute of limitations. 14. The applicant provides VA Form 21-4138, Statement in Support of Claim, 17 February 2022, in which she states she was sexually assaulted by another Soldier. Her commanding officer brushed off her attempt to report the incident. She was embarrassed, ashamed, and blamed herself. She went AWOL because she could not cope. During her absence, she had a child. She felt pressured into taking a Chapter 11 [sic] discharge. She did not understand the ramifications, but she feared losing custody of her child if she were court martialed. 15. A letter from County Veteran Services, 10 March 2022, written in her behalf, states she suffered a sexual assault while on active duty. She did not report the assault and went AWOL to escape the situation. The assault caused her mental health issues. 16. She provides a complete copy of her Military Service Record and Military Treatment Record. She also provides 427 pages of civilian medical documentation from UNC Health which will be summarized in the "MEDICAL REVIEW" section of this Record of Proceedings. 17. Discharges under the provisions of AR 635-200, Chapter 10 are voluntary requests for discharge for the good of the service, in lieu of a trial by court-martial. An under other than honorable conditions character of service is normally considered appropriate. 18. The Board should consider the applicant's argument and/or evidence in accordance with the published equity, injustice, or clemency determination guidance. 19. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of characterization of discharge. The applicant contends that another soldier sexually assaulted her on/about 14 May 2001, impacting her mental health and actions, and she felt pressure into taking a Chapter 10 discharge which she now perceives as unjust. 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 enlisted into the Regular Army on 15 August 2000. (2) She was characterized as AWOL on 14 May 2001 and Dropped From Rolls on 14 June 2001. (3) She was charged with AWOL from on/about 14 May 2001 and ultimately surrendered herself to military authorities on 18 June 2003. (4) Court martial charges were preferred against her on 11 July 2003 for being AWOL on/about 14 May 2001 to on/about 18 June 2003. (5) After receiving legal counsel she voluntarily requested discharge, in lieu of trial by court-martial, under the provision of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10. (6) A memorandum for record by Chief of Psychology Services, Womack Army Medical Center (Fort Bragg) indicates based on a comprehensive review of her medical history her BH diagnosis made her unfit for duty and stated her condition likely predated military service. (7) She was discharged on 15 August 2003 under AR 635-200 at the grade of E-1 with an UOTHC characterization of service. (8) A response by CID to ARBA request for potential files related to sexual assault event indicated no records pertaining to applicant. (9) Documentation indicates she asserted her CO brushed off her attempt to report the incident and she went AWOL because she could not cope. During her absence, she had a child and felt pressured into taking Chapter discharge; she feared losing custody of child if court-martialed. (10) A letter from County Veteran Services, 10 March 2022, written in her behalf, states she suffered a sexual assault while on active duty. She did not report the assault and went AWOL to escape the situation. The assault caused her mental health issues. (11) Documentation provided includes 427 pages of civilian Medical Records from UNC Health which were reviewed as part of the medical advisory. c. The military electronic medical record, AHLTA, was reviewed but there was no data associated with her active service time. d. A review of VA records via JLV indicates she is 70% service-connected for Post- Traumatic Stress Disorder. Record indicates she first received VA behavioral health services in 2019. An 11 April 2019 evaluation by a VA psychologist references a history of numerous traumatic events to include the suffocation death of applicant’s son in her own bed, a sexual assault perpetrated against her in the military, and a 1-yr incarceration. Evaluation described veteran’s awareness of history of diagnoses of bipolar disorder and borderline personality disorder, and a desire for (and past treatment with) dialectical behavioral therapy (DBT; a gold standard treatment for borderline personality disorder). Applicant was evaluated by a VA Psychiatrist on 12 April 2019 who again referenced hx of MST and suffocation death of her son; she was diagnosed at that time with borderline personality disorder, bipolar disorder, and PTSD. Documentation also cited apparent positive UDS (cocaine, cannabis, opioid) which she did not disclose. Additional psychiatric evaluation through the VA on 3 May 2019 also alluded to hx of MST in the military with diagnosis of bipolar disorder, adjustment disorder, and cannabis abuse. An evaluation by a VA Psychologist on 28 March 2022 referenced that veteran asserted an experience of MST while at Fort Bragg which led to AWOL and eventual discharge; other trauma to include death of child, spousal abuse, and incarceration with associated substance use as a coping mechanism; and that she was currently living in a two year substance abuse residential treatment program. She was diagnosed at that time with Unspecified Trauma and Stressor Related Disorder. Psychology Consult dated 7 August 2022 noted referral to a DBT skills group, that applicant was currently leaving in a residential treatment program for substance misuse, and she was eligible for VA treatment for MST/70% SC for PTSD. Psychotropic medications noted in her VA record include trazodone, lurasidone, lithium carbonate, hydroxyzine, buspirone, risperidone, and lamotrigine e. Applicant provided significant records related to civilian behavioral health care, summarized here. June 2018 inpatient records from UNC Health (Wakebrook) references hx of bipolar disorder and substance abuse with growing concerns of psychiatric decompensation and drug use by her boyfriend, with threats of suicidal ideation and concerns regarding assaultive behavior. At the time of this inpatient care, she had reportedly been d/c from another behavioral health program (Carter Clinic) due to noncompliance and failed drug screens. Evaluation references “several” prior psychiatric hospitalizations. Documentation references treatment through other agencies (eg, Turning Point and Southlight) and possible poor insight/minimization of substance use concerns. Additional records indicate psychiatric inpatient admission late November/early December 2018 (UNC Health/Wakebrook) for both depressive and manic symptoms (mixed), noting again bipolar disorder and borderline personality disorder with history of abuse of multiple substances. UNC Health documentation at this time suggests applicant reports at least 10 psychiatric admissions over time, she was first diagnosed with bipolar disorder age 19, and substance misuse has impaired her behavioral health treatment/medication compliance over time. It appears she was again admitted to UNC Health facility February 2020 for bipolar spectrum-related concerns, with a discharge diagnosis of Borderline Personality Disorder. Additional admission through UNC Health May 2020 for manic symptoms with suicidal ideation/plan to OD on heroin, noting an admission through “Holly Hill” approximately 2 weeks prior. She was again admitted in June 2020 seeking detox after relapsing on opioids after above hospitalization, again with SI/thoughts of overdosing. Subsequent admission late April/early May 2021(UNC Health/Wakebrook), seeking psychiatric/substance stabilization and clearance to attend a local substance abuse program. Of note, the extensive inpatient records frequently reference bipolar disorder but also at times question whether it is frank bipolar disorder, with functioning at times attributed to manifestations of borderline personality disorder in the context of substance abuse, which may mirror bipolar-spectrum symptoms. There is generally limited reference to PTSD in her civilian psychiatric records. Documentation references numerous trials of various psychotropic medications over time. f. An MFR dated 31 July 2003 by a licensed Active Duty Army psychologist (cited in the ROP) indicates a history of Bipolar Disorder and Borderline Personality Disorder in her psychiatric records, diagnoses which may contribute to “impulsive behavior, poor judgment, and low insight into the repercussions of her actions.” She was considered unfit for duty, and it was recommended she be either chaptered out of Army or medically boarded for her diagnoses (if appropriate); the MFR asserts it appears conditions existed prior to service. g. Based on the available information, it is the opinion of the Agency BH Advisor the applicant has a history of a behavioral health diagnosis which may mitigate the misconduct associated with her discharge. Liberal consideration policy warrants consideration by the Board. 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 psychological impairment during and associated with her military service secondary to sexual assault; there is evidence from her medical record that she has been diagnosed with MST-related PTSD (and is service connected for same), and she has pre- existing behavioral health issues (possible bipolar disorder and likely personality disorder) likely to impair judgment and decision making at the time of her offense and discharge. 2. Did the condition exist or experience occur during military service? Yes. The applicant contends a traumatic event and associated conditions occurred while she was on Active Duty; medical records cite her reported history of military sexual trauma leading to a diagnosis of PTSD, in addition to a history of pre- enlistment behavioral health concerns which appear to have manifested during her active service and have persisted to the present. 3. Does the condition or experience actually excuse or mitigate the discharge? Yes. It is the opinion of the medical advisor that the applicant’s PTSD (and overall psychological functioning) were a factor in the period of AWOL from May 2001 until June 2003, following the sexual assault she asserts; avoidance behaviors, of which AWOL/desertion may be indicative, can be part of the natural history and sequelae of PTSD. She also appears to have an extensive pre-enlistment history of mental health concerns; it is reasonable to assert these conditions would significantly impact her coping, judgment, and decision making following an event such as a sexual assault. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, her record of service, the frequency and nature of her misconduct, and the reason for her separation. The Board considered the medical records and conclusions of the advising official. The Board agreed CID indicated a thorough research produced no results regarding claims of assault. Additionally, the applicant did not provide nor did her service record contain evidence in support of her request. One possible outcome was to approve the applicant’s request based upon guidance for consideration of discharge upgrade requests. However, the Board non- concurred with the medical advisory opinion in that the applicant’s basis for separation was only partially mitigated. Based upon a preponderance of the evidence, and notwithstanding the recommendation of the advisory official, the Board determined the character of service the applicant received upon separation was not in error or unjust. ? 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, United States 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 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. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. 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. c. Paragraph 3-7b provides that 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. 3. 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. 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. 4. 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 (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. 5. Section 1556 of Title 10, United States Code, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220005642 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1