IN THE CASE OF: BOARD DATE: 28 September 2023 DOCKET NUMBER: AR20230002029 APPLICANT REQUESTS: Upgrade of her under honorable conditions (general) discharge and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * In-service Awards * DD Form 214 (Report of Separation from Active Duty) 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 during her last duty station in Germany, she was constantly harassed with cat calls and innuendos. The harassment was so profuse that she felt demeaned, anxious, and fearful for her safety. The delay for this request is due to her unawareness of this benefit 3. On her DD Form 149, the applicant notes sexual assault/harassment as a contributing and mitigating factor in the circumstances that resulted in her separation. 4. The applicant enlisted in the Regular Army on 21 January 1974, and she was honorably discharged on 23 November 1975. Her record is void of a DD Form 214 for this period of service. She was credited with 1 year, 10 months, and 2 days of net active service this period. 5. The applicant re-enlisted in the Regular Army on 24 November 1975 for 5 years. She was promoted to sergeant/E-5 on 1 July 1976. 6. Court-martial charges were preferred against the applicant on 8 March 1978 for violations of the Uniform Code of Military Justice (UCMJ). Her DD Form 458 (Charge Sheet) shows she was charged with two specifications of going absent without leave from on or about 16 January 1978 until on or about 19 January 1978, and from on or about 26 January 1978 until on or about 7 March 1978. 7. The applicant consulted with legal counsel on 10 March 1978 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 bad conduct discharge, and the procedures and rights that were available to her. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – 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 Veterans Administration, and she could be deprived of her rights and benefits as a Veteran under both Federal and State laws. b. She submitted a statement in her own behalf wherein she provided graphic detail of the sexual harassment, humiliation, and degradation she experienced throughout her military service. She further stated that she wanted her Army career; however, the treatment she received was affecting her mental state. 8. On 14 March 1978, the applicant's commander recommended approval of her request for discharge, and further recommended the issuance of an under honorable conditions (general) discharge. 9. By legal review on 23 March 1978, the applicant’s separation action was found to be legally sufficient for further processing. 10. The separation authority approved the applicant's request for discharge in lieu of trial by court-martial on 24 March 1978 and directed the issuance of a General Discharge Certificate. 11. The applicant was discharged on 4 April 1978. Her DD Form 214 confirms she was discharged under the provisions of Army Regulation 635-200, Chapter 10, with separation program designator code JFS (administrative discharge - conduct triable by court-martial). Her service was characterized as under honorable conditions (general). She completed 2 years, 2 months, and 25 days of net active service this period with 40 days of lost time. Her awards and decorations include the Army Commendation Medal. 12. 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. 13. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of her under honorable conditions (general) discharge. She contends MST mitigates 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 RA on 21 January 1974 and re-enlisted on 24 November 1975. * Court-martial charges were preferred against the applicant on 8 March 1978 for violations of the Uniform Code of Military Justice (UCMJ). Her DD Form 458 (Charge Sheet) shows she was charged with two specifications of going absent without leave from on or about 16 January 1978 until on or about 19 January 1978, and from on or about 26 January 1978 until on or about 7 March 1978. * Applicant submitted a statement in her own behalf; wherein, she provided graphic detail of the sexual harassment, humiliation, and degradation she experienced throughout her military service. She further stated that she wanted her Army career; however, the treatment she received was affecting her mental state. * Court-martial charges were preferred against the applicant on 14 January 1981. * The applicant was discharged on 4 April 1978. Her DD Form 214 confirms she was discharged under the provisions of Army Regulation 635-200, Chapter 10, with separation program designator code JFS (administrative discharge - conduct triable by court-martial). Her service was characterized as under honorable conditions (general). 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, ABCMR Record of Proceedings (ROP), DD Form 214, in-service awards and documents from her service record and separation. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. The applicant reports that during her last duty station in Germany, she was constantly sexually harassed. The harassment was so pervasive that she felt demeaned, humiliated, anxious, and fearful for her safety. The sexual harassment/MST significantly impacted her mental health which prompted her decision to go AWOL. d. Due to the period of service, no active-duty electronic medical records were available for review. However, the applicant submitted documentation from her time of service. The record indicates the applicant submitted a statement in response to the court-martial charges preferred against her, at the time of her separation. The statement details the sexual harassment/MST she endured and the subsequent impact on her mental health at the time. In addition, consistent with the applicant’s reported mental and emotional distress related to the sexual harassment/MST, the applicant is 80% service connected, including 30% for Major Depressive Disorder. e. Based on the information available, it is the opinion of the ARBA BH Advisor that there is sufficient evidence the applicant experienced sexual harassment/MST and a subsequent behavioral health condition during military service. The applicant’s experience and behavioral health condition provides full mitigation of her discharge. 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 contends MST. (2) Did the condition exist or experience occur during military service? Yes, there is evidence of sexual harassment/MST during military service and the applicant is 30% service connected for Major Depressive Disorder. (3) Did the condition exist or experience occur during military service? Yes. There is evidence of a mitigating experience, sexual harassment/MST, and subsequent BH condition. The applicant reports experiencing sexual harassment/MST during military service that impacted her mental health and she is 30% service connected for Major Depressive Disorder. Given the nexus between MST and AWOL, as a self-protective measure to escape the harassment, the applicant’s basis of separation would be fully mitigated by the MST. BOARD DISCUSSION: 1. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense 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 applicant's sexual harassment claim and the review and conclusions of the ARBA BH Advisor. The Board found evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding her misconduct being mitigated by military sexual trauma. Based on a preponderance of evidence, the Board determined the applicant’s character of service should be changed to honorable. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing her DD Form 214 for the period ending 4 April 1978 to show her character of service as 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, 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. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the 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. 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. a. Paragraph 2-9 states 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 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. Army Regulation 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 under other than honorable conditions (UOTHC) discharge was normally considered appropriate. 5. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Navy 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 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. 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, 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) AR20230002029 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1