IN THE CASE OF: BOARD DATE: 19 July 2023 DOCKET NUMBER: AR20230000074 APPLICANT REQUESTS: upgrade of her under honorable conditions, general discharge to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) (two) * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) from a fellow Soldier * Character Letter * VA Summary of Benefits Letter * VA Medical Documents/List 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 issues/conditions related to the applicant’s request are post-traumatic stress disorder (PTSD), other mental health, and sexual assault/harassment. The applicant states she would like her discharged changed to honorable as she endured Military Sexual Trauma (MST) while in the service. The MST took place while she was stationed in Germany and a noncommissioned officer (NCO) Sergeant (SGT) sexually harassed her. It started out small and grew, he would “accidently” bump into her which would cause his body to touch hers in an uncomfortable way. He would grab her butt while inside the walk-in fridge at the dining facility (DFAC). She confided in two friends SGT and her friend SGT told her sergeant and the harassment continued. SGT wanted to take pictures of her undressing and she would ask him to leave. He said no one would believe her over him. He would make comments about her body. She went to the First Sergeant (1SG) . She was moved from the DFAC and to the orderly room and when SGT was demoted for the sexual harassment no one would discuss why this happened to him and she was treated like an outcast. She learned SGT was doing the same things to . He was a predator to females in the unit. 3. The applicant enlisted in the Regular Army on 21 September 2004 for 3 years and 22 weeks. Her military occupational specialty was 92G (Food Service Specialist). 4. The applicant served in Germany from 7 August 2006 to on or about 30 March 2007. 5. The applicant was formally counseled on various occasions between 12 April 2005 and 8 July 2007. 6. A Military Police Report, dated 14 April 2005, shows the applicant and were involved in a verbal altercation which turned physical when the applicant struck with a beer bottle. reported to the Military police (MP) station where he was administered a breath test which resulted in readings of 0.00/ml. The applicant reported to the MP station where she was administered a breath test which resulted in readings of 0.12/ml. The applicant was further processed and released to her unit. On 10 April 2005, the applicant reported to the MP station and was advised of her legal rights, rendering a sworn statement admitting to the above offense. sustained a bruise on his right bicep. No other injuries were reported. The Staff Judge Adjutant opined there was sufficient credible information to title the applicant with assault consummated by battery under the Uniform Code of Military Justice (UCMJ). 7. In a Sworn Statement on 10 April 2005, the applicant states she went to Private room. They had been dating for a while and they broke up. She went to collect the money he owed her and told her she was not getting s__ and proceeded to harasses her and her three friends. called her a w__ and a fat b__ and verbally abused her. She got mad and threw the beer bottle at the wall and it bounced off and hit in the arm. There was no intent to harm , he just pushed her buttons. 8. The applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the UCMJ on 21 June 2005, for unlawfully striking Private on the arm with a bottle on or about 9 April 2005. Her punishment consisted of reduction to private/E-1, forfeiture of $288.00 pay (suspended), extra duty and restriction. 9. The applicant accepted NJP under the provisions of Article 15 of the UCMJ on 6 January 2006, for: * treating with contempt Staff Sergeant (SSG) , an NCO who was in the execution of his office on or about 12 December 2005 * orally communicating to Ms. certain indecent language on or about 9 December 2005 * orally communicate to Mr. certain indecent language on or about 5 December 2005 * orally communicate to Ms. certain indecent language on or about 23 November 2005 * her punishment consisted of reduction to E-1 (suspended), forfeiture of $311.00 pay (suspended), extra duty and restriction (suspended) 10. On 2 March 2007, she received counseling for misbehavior of sentinel or look out. 11. The applicant served in Iraq from 25 June 2007 to 6 September 2007. 12. The applicant accepted NJP under the provisions of Article 15 of the UCMJ on 14 July 2007, for wrongfully communicating a threat. Her punishment consisted of reduction to E-1, forfeiture of $750.00 pay for two months (suspended), extra duty and restriction. 13. A Report of Mental Status Evaluation, dated 16 July 2007, shows the applicant had the mental capacity to understand and participate in the proceedings, was mentally responsible and had a diagnosis of adjustment disorder with depressed mood. 14. On 8 August 2007, the applicant's immediate commander notified her of his intent to initiate separation actions against her under the provisions of Army Regulation 635- 200 (Active Duty Enlisted Administrative Separations), Chapter 14-12b, for misconduct- pattern of misconduct. As the specific reasons, her commander noted she had received three NJPs within a 13-month period for assault, absence without leave, provoking gestures and indecent language, and disrespect. In addition, she had received multiple negative counseling statements for continuous disrespect, failing to report to her appointed place of duty, and making false official statements. The applicant acknowledged receipt of the proposed action on the same date. 15. The applicant consulted with legal counsel on the same date and was advised of the basis for the contemplated actions to separate her and of the rights available to her. She understood that she might expect to encounter substantial prejudice in civilian life. She acknowledged her understanding and elected not to submit a statement in her own behalf. She waived counsel and presentation by military and civilian counsel. 16. In a Memorandum for Record, dated 8 August 2007, the applicant stated she had been read her rights and waived her right to see Trial Defense Service. She fully understood her chapter discharge and had no desire to challenge this for any reason. She just wanted to complete her extra duty and be processed out of the Army as soon as possible. 17. The applicant's commander formally recommended her separation from service under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of a pattern of misconduct. The chain of command recommended approval. 18. On 16 August 2007, the separation authority approved the recommended action and directed the issuance of a general, under honorable conditions discharge. 19. The applicant was discharged on 13 September 2007. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of pattern of misconduct. Her characterization of service was under honorable conditions (general). Her Separation Code was JKA with Reentry Code 3. She completed 2 years, 11 months, and 23 days of net active service. She was awarded or authorized the National Defense Service Medal, Global War on terrorism Service Medal, and the Iraq Campaign Medal. 20. The applicant provides: a. A Statement in Support of claim, dated 9 November 2016, from who states she was stationed in Germany with the applicant and the applicant came to her and told her she was being harassed by SGT and reiterated the applicants claims. He would show up in her room and try to take pictures of her. SGT tried to get her to lay down in the bed with him. She recalls hearing about the new Soldiers (females) talking about him and how he would make a pass at them and try to hook up with whoever would give him the time of day. He was a sick and disgusting man who didn’t deserve to wear a uniform in the military, he was a predator. b. An email character letter, dated 9 November 2016, from the applicant’s 1SG who states he arrived in Germany and UCMJ action was pending or had just finished for SGT for sexual assault/harassment toward the applicant. SGT was demoted. There was a toxic environment in the unit and morale was the lowest he had ever seen in his career. c. A VA benefits letter, dated 9 September 2022, shows a combined service- connected disability evaluation of 80%. She also provides a DD Form 214, VA medical documents, and medical lists. 21. On 2 March 2023, by letter, the U.S. Army Criminal Investigation Command revealed Military Police Reports and a Commanders Report of Disciplinary or Administrative Action that shows on 9 April 2005 the applicant was involved in an assault consummated with battery, with NJP and resultant punishment of reduction to E-1, extra duty, and restriction. 22. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 23. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of her under honorable conditions, general discharge to honorable. She contends PTSD, other mental health concerns, and MST are mitigating factors in the misconduct that led to her discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * Applicant enlisted in the Regular Army on 21 September 2004. * Applicant served in Iraq from 25 June 2007 to 6 September 2007. * The applicant was formally counseled on various occasions between 12 April 2005 and 8 July 2007 (numerous for not being at her appointed place of duty). The applicant accepted non judicial punishment (NJP) on 21 June 2005 for assaulting another soldier and failure to go to their appointed place of duty (late from an appointment). The applicant accepted non judicial punishment (NJP) on 6 January 2006, for: treating with contempt an NCO on or about 12 December 2005, orally communicating with indecent language on or about 23 November 2005, 5 December 2005 and 9 December 2005. The applicant accepted NJP on 14 July 2007, for wrongfully communicating a threat. * The applicant was notified by her commander 8 August 2007 of his intent to initiate separation under AR 635-200, chapter 14-12b, for misconduct – patterns of misconduct. As the specific reasons, her commander noted she had received three NJPs within a 13-month period for assault, absence without leave, provoking gestures and indecent language, and disrespect. In addition, she had received multiple negative counseling statements for continuous disrespect, failing to report to her appointed place of duty, and making false official statements. * Applicant was discharged 13 September 2007 under AR 635-200, Ch 14-12b with an under honorable conditions (general) discharge. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 293, ABCMR Record of Proceedings (ROP), Department of VA Form 21-4138 (statement in support of claim from a fellow soldier), character letter, VA Summary Benefits Letter, VA medical documents, as well as documents from her service record and separation. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV) and AHLTA. Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant asserts she experienced military sexual trauma (MST) while stationed in Germany, and that her MST and mental health conditions mitigate her discharge. A narrative of the events leading up to the applicant’s discharge are provided in the ROP and supporting documents file, with the ROP stating she was in Germany starting in 2006, this being where the MST was occurring, and a majority of her misconduct occurring in 2005. However, the counseling statements and military police reports documenting the misconduct were all listed with Germany addresses. Hence, it is evident the applicant was in Germany during her misconduct AND when the MST occurred. Also, supporting statements indicate she was not only dealing with the sexual assault/harassment, but also a toxic work environment, which helps put into context some of her work-related outbursts/behaviors. e. Provider reviewed her available electronic health records (EHR) from her time in service and found several mental health related notes and/or encounters. It’s important to note that during her years of service EHR were not yet the primary way of documenting and much of the medical documentation may not be fully available, with this provider often only able to see a diagnosis and very little additional data. An encounter was listed from 21 July 2005, with a diagnosis listed as depression but no further data was available. Another on 15 December 2005 indicates that she walked in for mental health care secondary to suicidal ideation. The applicant was seen on 7 July 2007 for a command directed psychiatric evaluation secondary to her having multiple issues socially, loss of rank, states she was threatened by command, and family issues at home. She was diagnosed with acute reaction to stress and appears to have participated in a 2-day restoration program through Combat Operational Stress Control. She was seen again on 16 July 2007 for a mental status exam secondary to her chapter processing. the applicant was diagnosed with adjustment disorder with depressed mood, referred to do a process group with combat stress, and was also cleared for any administrative action deemed appropriate by command. f. Per the applicant’s EHR, she engaged with health care at the VA starting shortly after discharge and first engaged with mental health in 2009. At that time, she was denying any significant concerns. She reengaged in care in 2016, secondary to occupational stressors and was experiencing significant anxiety, and acknowledging her history of harassment and trauma, to include some additional trauma post military. She has engaged in psychiatric care since. The applicant was seen for a compensation and pension evaluation (C&P/PTSD DBQ) on 9 March 2023, though records indicate she had previously been assessed in 2017 as well (no copies were available). Her PTSD was found to be service connected and related to MST. The applicant is 100% service connected, to include 70% for PTSD (the documents she submitted to support her application have her listed as 80% service connected in total, though this is not what her current medical record reflects). The applicant has also been diagnosed and treated for major depression and insomnia. g. It is the opinion of the Agency Behavioral Health Advisor that there is sufficient evidence to support the applicant had a mitigating condition and experience at the time of service and has since been service connected for PTSD. However, her condition and experience would only mitigate some, but not all of the misconduct she was discharged for. 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 has been diagnosed with PTSD and has experienced an MST. (2) Did the condition exist, or experience occur during military service? Yes, during her time in service she was diagnosed with depression and an adjustment disorder with depressed mood, with depression being a mitigating condition. She has since been 70% service connected for PTSD. There is also sufficient evidence present to support a mitigating experience occurred (MST). (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The applicant asserts mitigation due to her experience of MST, PTSD and other mental health (depression) secondary to the trauma. Per liberal consideration guidelines, her assertion alone is worthy of consideration by the Board. She has since been service connected for PTSD (70%). An assault, failure to reports/AWOL, provoking gestures, indecent language and disrespect appear to have occurred around the time of her MST or after and are associated with her discharge. Failure to report and/or AWOL is an avoidance behavior associated with the natural history and sequelae of trauma-exposure/PTSD. Acting out in anger and with irritability is also a behavior associated with PTSD. There is a nexus between these symptoms/experiences and some of her misconduct. However, acting out with violence is not consistent with the natural history and sequalae of PTSD or MST. At a minimum, partial mitigation is supported with a narrative reason for separation change to Secretarial Authority. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was 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. One potential outcome was to grant relief with an upgrade to honorable based on the applicant’s reported military sexual trauma. However, upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding sufficient evidence to support the applicant had a mitigating condition and experience at the time of service and has since been service connected for PTSD. However, her condition and experience would only mitigate some, but not all of the misconduct related to her discharge. 2. The Board agreed based on the medical opine which noted that failure to report and/or AWOL is an avoidance behavior associated with the natural history and sequelae of trauma-exposure/PTSD. Acting out in anger and with irritability is also a behavior associated with PTSD. There is a nexus between these symptoms/experiences and some of her misconduct. During deliberation, the Board determined that acting out with violence and assault is not consistent with the natural history and sequalae of PTSD or MST. The applicant was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board considered the applicant’s letters of support but found the applicant provided no post service accomplished for the Board to consider for clemency. The board agreed, based on the preponderance of evidence, partial relief is warranted by amending the applicant’s narrative reason to show Secretarial Authority. However, 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. Therefore, partial relief was granted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 for the period ending 13 September 2007 to show in item 28 (Narrative Reason for Sepration) Secretarial Authority. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade of the applicant’s under honorable conditions, general discharge to honorable. 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): Not Applicable 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 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. Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. 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 considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 4. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) to carefully consider the revised post-traumatic stress disorder (PTSD) criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions 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. 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. 6. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018, 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) AR20230000074 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1