IN THE CASE OF: BOARD DATE: 2 August 2023 DOCKET NUMBER: AR20230001581 APPLICANT REQUESTS: upgrade of her under other than honorable conditions (UOTHC) discharge to honorable. Additionally, she requests an appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Medical Documents 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 states she went absent without leave (AWOL) because she was raped and she didn’t trust her superiors at her new duty station in Killeen, TX. She was in fear of being raped again. What she anticipated being the best choice she ever made was a complete nightmare. She has suffered since. She wanted to become a drill sergeant and retire in 20 years, due to her mental and physical abuse, it was taken away from her. 3. The applicant states: a. While she was in basic training her drill sergeant (SGT) coerced her into having a sexual relation with him and his fellow friends who were drill sergeants. He also played a part in forcing her to sleep with him. This started in December 1995, when his friends had charge of quarters (CQ). On the weekends, they would allow him to sneak her out of the barracks. He would have civilian clothes for her to change into so he could sneak her into his barracks. This continued during the weekends his friends were on CQ duty until she graduated advanced individual training (AIT). Every day she was afraid, powerless, and manipulated. She was scared to tell authorities in fear of what would happen to her. She felt numb and ashamed. She had sleepless nights and did not have an appetite to eat. She was afraid to tell him she didn’t want to do it anymore. She didn’t trust what he would do or what he was capable of having done to her. While on leave for 30 days she contemplated not going back to AIT. b. The next time it happened was in August 1996 in Korea. She and fellow Soldiers were drinking in one of their rooms, she was intoxicated and began to go in and out of consciousness. She recalls being in SGT ’s room in his bed and he was putting her pants on. He practically had to carry her from his room to her room, she wasn’t sure if he had sex with her. When she regained consciousness later, she had flashbacks of him having sex with her. She felt embarrassed and upset. She was not sure exactly how it happened and avoided everyone; she stayed in her room when not at work. The SGT tried to make small talk with her, and she could smell his scent from that evening. She avoided him and was constantly on guard. She had a hard time sleeping and eating and feeling like it was her fault. She did not tell anyone. She isolated herself on weekends, it was hard for her to cope with her emotions. SGT noticed a change in her behavior and she mentioned to him she thought she was sexually assaulted but didn’t have any evidence. c. She was so afraid for her safety, being in a different country not knowing who she could trust. Once she left for the States, she again did not report for duty at Fort Hood, TX. In fear and emotionally distraught from what happened to her previously, she went AWOL on 12 August 1997. She was too afraid and didn’t trust anyone in the military. d. Over the years since leaving the Army, she has had anxiety and depression and started drinking heavily. She began drinking and having blackouts that resulted in two driving while under the influence charges in , . Her relationship with her husband resulted in divorce, he left because of her drinking. When he left, she went for a mental health evaluation and was diagnosed with anxiety and depression. She has had relationship problems with her children. e. She told a friend of her situation, being depressed, having anxiety, and the sexual trauma she endured while in the Army. He suggested she get help through the Department of Veterans Affairs (DVA). As of now she does not drink anymore. She also experienced racial and sexist prejudice while in the Army. She was always assigned to the orderly room instead of being assigned to the motor pool. 4. The applicant enlisted in the Regular Army on 22 November 1995 for 3 years. Her military occupational specialty was 62B (Construction Equipment Repairer). Her history of assignments show she also served as a mail clerk and in the orderly room. 5. She served in Korea from 16 June 1996 through 15 June 1997. 6. Court-martial charges were preferred against the applicant on 11 September 1997, for violations of the Uniform Code of Military Justice (UCMJ). Her DD Form 458 (Charge Sheet) shows she was charged with being AWOL from on or about 12 August 1997 and did remain so absent. 7. The applicant was apprehended by civilian authorities on 8 September 1998 and returned to military control on 9 September 1998. 8. An updated charge sheet shows court-martial charges were preferred against the applicant on 16 September 1998, for being AWOL from on or about 12 August 1997 through on or about 9 September 1998. 9. The applicant consulted with legal counsel on 17 September 1998 and 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. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), Chapter 10, in lieu of trial by court-martial. 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 further acknowledged she understood that if her discharge request was approved she could be deprived of many or all Army benefits, she could be ineligible for many or all benefits administered by the DVA, and she could be deprived of her rights and benefits as a Veteran under both Federal and State laws. b. She did not submit statements in her own behalf, and she did not desire a physical evaluation prior to separation. 10. The applicant's immediate commander recommended approval of her request for discharge with her service characterized as UOTHC. The commander noted the applicant had been charged with one specification of AWOL totaling 393 days and had been apprehended by civilian authorities. She had become disillusioned with the military and retention was not in the best interest of the Army. 11. The separation authority approved the applicant's request for discharge on 26 January 1999, in lieu of trial by court-martial. He directed that the applicant be reduced to the lowest enlisted grade and receive an UOTHC discharge. 12. The applicant was discharged on 24 February 1999. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged under the provisions of AR?635-200, Chapter 10, in lieu of trial by court-martial, with Separation Code KFS and Reentry Code 3. Her service was characterized as UOTHC. She completed 2 years and 2 months of net active service. She lost time from 12 August 1997 to 8 September 1998. 13. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, she consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 14. The applicant provides medical documents that show behavioral health diagnoses of other specified depressive episodes, mild, attention and concentration deficit, and adjustment disorder with mixed anxiety and depressed mood. 15. On 23 March 2023, in the processing of this case the U.S. Army Criminal Investigation Division, searched their criminal file indexes, which revealed no Criminal Investigative and/or Military Police Reports pertaining to the applicant. 16. 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. 17. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of her under other than honorable conditions (UOTHC) discharge to honorable. The applicant asserted military sexual trauma (MST) as a mitigating factor in her misconduct and 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 22 November 1995. * She served in Korea from 16 June 1996 through 15 June 1997. * Court-martial charges were preferred against the applicant on 11 September 1997. She was charged with being AWOL from on or about 12 August 1997 and did remain so absent. The applicant was apprehended by civilian authorities on 8 September 1998 and returned to military control on 9 September 1998. Her charge sheet was updated to reflect the additional time AWOL. * On 17 September 1998, the applicant voluntarily requested discharge under AR 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial. * The applicant was discharged on 24 February 1999 under AR 635-200, Chapter 10, in lieu of trial by court-martial with an UOTHC characterization of service. 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 149, her ABCMR Record of Proceedings (ROP), self-authored statement, medical documents, DD Form 214, 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), though minimal data was available. Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant attests to being raped, manipulated, coerced, and taken advantage of numerous times by a drill sergeant while at basic training. She reported being likely raped again while stationed in Korea. She asserts this led to her going AWOL from her duty station as she did not trust her superiors and was fearful of being raped again. The applicant reported that since leaving the Army, she has had anxiety and depression and started drinking heavily, which has had legal ramifications and has negatively impacted her relationships (divorced, problems with relationship with children). e. The applicant’s electronic health record (EHR) is void of any physical or mental health encounters. At the time of discharge, the applicant did not supply statement(s) on her behalf, did not desire a physical evaluation, and no mental status exam was included in the separation packet. She did not provide any documentation to support her assertions of MST, nor mental health concerns. However, much of what she described in her self-statement in terms of her experiences and behaviors while in the Army indicates some posttraumatic stress symptoms (avoidance, reexperiencing, mood, and increase reactivity symptoms). A request for information from CID did not produce any records or data about the applicants asserted MSTs. f. Per the applicant’s EHR, she does not hold any mental health diagnoses from the VA, is not service connected, and otherwise has not been engaged in any documented mental health care. That said, due to the characterization of the applicant’s discharge, she likely is not eligible for most services through the VA. However, the applicant did supply copies of medical records indicating she engaged in therapy and medication management. Her most recent episode of care started in 2021 (through 2022), and she was seen for panic attacks and depression, citing her history of sexual assault and trauma symptoms as the catalyst. She was diagnosed with MDD – recurrent – moderate, PTSD and Panic Disorder. Her records show that during another episode of care (2020), she was diagnosed with major depressive disorder (MDD) – single episode – moderate, generalized anxiety disorder, and a rule out of bipolar disorder. However, her symptoms had improved and near the end of treatment she was diagnosed with other specified depressive episodes - mild, attention and concentration deficit (with a rule out of ADHD), and adjustment disorder with mixed anxiety and depressed mood. Her records do not indicate any diagnosis or treatment until 2016, and applicant acknowledges in her self-statement not seeing the depression and anxiety until she was out of the service. g. It is the opinion of the Agency Behavioral Health Advisor that there is minimal evidence, outside of self-report to indicate, the applicant had a mitigating experience during her time in service. However, there is evidence that the applicant has been diagnosed with PTSD, anxiety, panic disorder, and depression since her time in the service, with her sexual assaults often listed in her medical history. Per Liberal Consideration guidance, her contention is sufficient to warrant the Board’s consideration. 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 a mitigating experience (MST). (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts numerus MSTs occurred during her time in service. She also asserts mitigating mental health conditions developed during her time in service (anxiety, depression) secondary to the MSTs. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant’s medical records since her time in service do support that she has been diagnosed with PTSD, depression, and anxiety. And while there are no medical records from her time in service, the applicant’s description of her experiences during her time in service do suggest she was likely experiencing at least some posttraumatic symptoms. There is minimal evidence, beyond self-report, that the applicant had a mitigating experience, or experiences, occur during her time in service. However, per Liberal Consideration guidance, her contention is sufficient to warrant the Board’s consideration. AWOL occurred after her reported MSTs and is the misconduct leading to her discharge. AWOL is an avoidance behavior associated with the natural history and sequelae of trauma-exposure and PTSD. In summary, mitigation is supported, and an upgrade is recommended 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 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 his characterization of service. One potential outcome was to deny relief based on minimal evidence, outside of self-report to indicate, the applicant had a mitigating experience during her time in service However, upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding there is evidence that the applicant has been diagnosed with PTSD, anxiety, panic disorder, and depression since her time in the service, with her sexual assaults often listed in her medical history. The Board determined the applicant’s medical records since her time in service do support that she has been diagnosed with PTSD, depression, and anxiety. Evidence of record shows, at the time of separation, documentation supports the narrative reason for separation properly identified on the applicant’s DD Form 214. 2. The Board agreed, based on the medical opine the applicant’s AWOL occurred after her reported MSTs and is the misconduct leading to her discharge. AWOL is an avoidance behavior associated with the natural history and sequelae of trauma- exposure and PTSD. The Board determined partial relief was warranted with an upgrade of her character of service to general under honorable conditions. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : :X MEK GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X : : 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 24 February 1999 to show in item 24 (Character of Service) general under honorable conditions. 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 her under other than honorable conditions (UOTHC) 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. REFERENCES: 1. Title 10, U.S. Code (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. 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. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. 4. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the 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. c. Chapter 10 provided 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, a UOTHC discharge was normally considered appropriate. 5. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR), on 3 September 2014, 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 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. 6. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. 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, 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. 7. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service DRBs and Service 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) AR20230001581 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1