IN THE CASE OF: BOARD DATE: 21 June 2023 DOCKET NUMBER: AR20220011281 APPLICANT REQUESTS: Her under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge, her narrative reason for separation be changed to Secretarial Plenary Authority, and to be afforded a personal appearance before the Board via phone or video. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Copies of the Kurta, Hagel, and Wilkie Memoranda FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 defers comments to counsel. Counsel states that the applicant will provide a forthcoming memorandum in which she will address with specificity the justifications for her upgrade and change requests. 3. Counsel also cites the Kurta, Hagel, and Wilkie Memorandums specifically stating: a. That the memos represent a substantial enhancement of rights afforded to service members who are sexually harassed, application of a liberal consideration. b. Because the applicant bases her application on sexual harassment during her service, her application is entitled to "liberal consideration." c. The Board reviewing her application must "seek advice and counsel" from a "psychiatrist, psychologist, or social worker with training on mental health issues associated with ... trauma." d. The record does not contain the additional memorandum referred to by counsel. 4. On the applicant's application, it is indicated that sexual assault and/or harassment was a contributing and mitigating factor in the circumstances that resulted in her separation. However, she did not provide any evidence to support this. 5. The applicant enlisted in the Regular Army on 15 September 1976, completed training, and was awarded military occupational specialty 73C (Finance Specialist). 6. The applicant's available record contains limited documentation and is void of a separation packet containing the specific facts and circumstances surrounding the applicant's discharge processing. 7. The applicant's DD Form 214 shows she was discharged on 26 March 1978 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 with Separation Program Designator (SPD) code JFS (for the good of the service - in lieu of trial by court-martial). She was discharged in the grade of E-1, and her service was characterized as UOTHC. She had 1 year, 5 months, and 22 days of net active service with 4 months and 18 days of prior inactive service. 8. The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no evidence that would indicate the contrary. 9. A review of the records at the Department of the Army Criminal Investigation, Division Crime Records Center failed to reveal any records pertaining to the applicant. 10. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 11. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of her under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge, her narrative reason for separation be changed. She contends experienced military sexual trauma (MST), which mitigates 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 15 September 1976; 2) The applicant's available military record contains limited documentation and is void of a separation packet containing the specific facts and circumstances surrounding the applicant's discharge processing; 3) The applicant was discharged on 26 March 1978, Chapter 10, in lieu of trial by court-martial. She was discharged in the grade of E-1, and her service was characterized as UOTHC. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s available military service records. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional hardcopy civilian treatment records, narrative reason for request, or service documents were provided for review. d. On her application, the applicant noted sexual assault/harassment was related to her request, as a contributing and mitigating factor in the circumstances that resulted in her separation. With the lack of information provided in regards the nature of the events which resulted in the applicant’s discharge, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no evidence that would indicate the contrary. In addition, a review of records from the Army Criminal Investigation, Division Crime Records Center failed to reveal any records pertaining to the applicant. There was no indication the applicant reported mental health symptoms while on active service. A review of JLV was void of behavioral health documentation, and the applicant does not receive any service-connected disability. The applicant did not provide any civilian medical documentation. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience that partially mitigated her misconduct. Kurta Questions 1. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant noted MST was related to her request, as a contributing and mitigating factor in the circumstances that resulted in her separation on her application. 2. Did the condition exist or experience occur during military service? Yes, the applicant noted sexual assault/harassment was related to her request, as a contributing and mitigating factor in the circumstances that resulted in her separation from active service. 3. Does the condition or experience actually excuse or mitigate the discharge? No, at this time, there is insufficient evidence beyond self-report the applicant experienced MST while on active service. In addition, there was insufficient evidence provided to the nature of the events which resulted in the applicant’s discharge. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no evidence that would indicate the contrary. Nonetheless, in accordance with the liberal consideration memo, the applicant’s contention of MST alone is sufficient to be considered by the board in reaching its final determination. 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 through counsel 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 through counsel of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding insufficient evidence to support the applicant had condition or experience that partially mitigated her misconduct. The applicant no provided post-service achievements or character letters of support to weigh a clemency determination. 2. The Board noted the lack of information provided in regards the nature of the events which resulted in the applicant’s discharge, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. This board is not an investigative body. The Board determined despite the absence of the applicant’s separation records, they 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 of a discharge upgrade. 3. The Board recognized there is insufficient evidence beyond self-report the applicant experienced MST while on active service. The Board determined a review of records from the Army Criminal Investigation, Division Crime Records Center failed to reveal any records pertaining to the applicant. The Board understands many sexual assault victims do not report. However, when prepondering evidence, there are sometimes symptoms of MST displayed by victims prior to their separation. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. Furthermore, the Board determined evidence in the record shows, at the time of separation, documentation supports the narrative reason for separation properly identified on the DD Form 214. Therefore, relief was denied. 4. 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, U.S. 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. Title 10, U.S. Code, 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 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation states: a. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. b. Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at that time provided that: 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 of that regulation provided, in pertinent part, 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, an under other than honorable conditions discharge was normally considered appropriate. d. The Secretary of the Army, on a case-by-case basis, determined a characterization of service as honorable was clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization was authorized when the Soldier was separated by reason of selected changes in service obligation, for convenience of the government, and under Secretarial plenary authority. 5. Army Regulation 635-5-1 (SPD Codes) 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 provides that the separation code "JFS" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 10, for the Good of the Service, in lieu of court martial. 6. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR), 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. 7. The Under Secretary of Defense for 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. 8. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records, 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// ABCMR Record of Proceedings (cont.) AR20220011281 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1