ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 August 2019 DOCKET NUMBER: AR20190003273 APPLICANT REQUESTS: * upgrade of his general under honorable conditions discharge * removal of derogatory information from his official military personnel file (OMPF) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 4-page personal statement * letter from the Department of Veterans Affairs (VA), dated 7 August 2017 * one-page Psychology Individual Therapy/Military Sexual Trauma (MST) Screening, dated 8 February 2016 * two third-party statements * VA Certificate of Eligibility FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), 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 he was a victim of several MST incidents while serving in the Army, which eventually led to his discharge. Once he tried to report the MST incidents, his career suffered. 3. The applicant enlisted in the Regular Army on 10 March 1983. His DA Form 2-1 (Personnel Qualification Record – Part II) shows he served in Germany from 29 June 1983 to 23 December 1984. He was reassigned to Fort Stewart, GA. 4. The applicant's records contain a Criminal Arrest Warrant, dated 20 June 1985, issued against him by the for the offense of making a bad check. 5. The applicant's records contain numerous DA Forms 4856 (General Counseling Form) with dates ranging from 23 April 1985 to 19 August 1985 showing he was counseled on several occasions for acts of misconduct that include missing issued equipment, failure to follow instructions, failure to report or reporting late, missing formations, and rendering dishonored checks. His records also show he was counseled several times for failure to pay just debts. 6. A DA Form 4126-R (Bar to Reenlistment Certificate) was approved for the applicant on 26 August 1985. Item 12 of this form shows his commander's reasons for the issuance of the DA Form 4126-R. 7. The applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on 28 August 1985 for being absent from his place of duty without authority. 8. A DA Forms 4187 (Personnel Action) shows he was confined by civilian authorities on 6 September 1985. 9. On 6 September 1985, the applicant was informed of a contemplated separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), chapter 14 (Misconduct). He completed a Waiver/Election of Rights document pertaining to the options and rights available to him. He indicated he was afforded the opportunity to consult with legal counsel but that he was declining the opportunity. He also indicated he was aware of the basis for the contemplated action to accomplish his separation, its effects, and the effect of any action taken by him in waiving his rights. 10. On 17 September 1985, the applicant's immediate commander formally recommended the applicant's separation from the Army under the provisions of Army Regulation 635-200, chapter 14, for acts or patterns of misconduct and commission of a serious offense. 11. On 25 September 1985, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12, with a general under honorable conditions characterization of service. 12. A DA Form4187 shows the applicant was released from civilian confinement and returned to his unit on 10 October 1985. 13. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 15 October 1985 under the provisions of Army Regulation 635-200, paragraphs 14-12b and 14-12c, for misconduct- pattern of misconduct – commission of a serious offense, with an under honorable conditions (general) characterization of service. 14. The applicant provided: a. A 4-page personal statements in which he describes the sexual assaults he endured while on active duty service. He also states that he tried to report the sexual assaults to his chain of command but when he started talking about the molestation he experienced for 12 years from his step-father, they abruptly ended the meeting. He told them he needed to get everything of his chest but they did not want to hear it. He further states he believes that once he tried to report the sexual assaults, his command did not want to deal with the issue and used his financial issues to discharge him, even though he had proof that it was not his fault for all the checks issues. b. A letter from the VA, dated 7 August 2017, provided by a licensed psychologist, supporting the applicant's claim that he suffers from post-traumatic stress disorder (PTSD) and depression related to multiple sexual traumas in the military. c. A one-page Psychology Individual Therapy/Military Sexual Trauma (MST) Screening, dated 8 February 2016, indicating the applicant reported experiencing MST in the past and that he is currently in treatment with a mental health provider. d. A third-party statement, provided by his mother, describing the applicant's change in behavior after his return from Germany and corroborating the applicant's claim that he reported the sexual assaults to his commander in 1985, with his mother present, and that the meeting was ended abruptly. e. A third-party statement, dated 8 August 2018, provided a friend of the applicant, stating that the applicant disclosed to him the MST incidents while in the military. 15. On 22 May 2019, the Army Review Boards Agency psychologist/medical advisor provided a medical advisory opinion. The advisory found the applicant has a service- connected disability rated at 70 percent due to PSTD from MST and 20 percent for colitis. The advisory also found there is a nexus between the applicant's PTSD and his offenses of failure to report and difficulty at work. However, PTSD is not a mitigating factor for the bad checks and failure to make restitution. A copy of the complete medical advisory was provided to the Board for their review and consideration. 16. The applicant was provided a copy of the advisory opinion on 10 June 2019 and given an opportunity to submit comments. He responded and expressed his agreement with the findings of the advisory opinion. He clarified that he was granted service- connected disability compensation for PTSD rated at 70 percent and 60 percent for diverticulitis. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement regarding MST, his overall record of service, the frequency and nature of his misconduct, his confinement by civilian authorities, a Bar to reenlistment, the reason for his separation and whether to apply liberal consideration. The Board considered the applicant’s personal statement regarding his sexual assaults, his service connected VA ratings, the conclusions of the advising official regarding mitigation of some misconduct and the applicant’s response to the advisory. The Board found while some misconduct was mitigated, there was not sufficient evidence to overcome all of the offenses that led to his separation. While the applicant did not specify which negative information he wanted removed, the Board did not find sufficient evidence to remove documentation from the applicant’s record. The Board determined, based on a preponderance of evidence, that the character of service the applicant received at separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 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, convictions by civil authorities, desertion or absence 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 and an unfit medical condition is not the direct or substantial contributing cause of his/her misconduct. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 3. Army Regulation 635-200, paragraph 3-7a provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier'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. 4. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised 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. A memorandum from the Secretary of Defense, dated 25 August 2017, provided clarifying guidance regarding mental health conditions, sexual assault, and sexual harassment when reviewing requests for changes in discharges. 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. Invisible wounds are some of the most difficult cases and there are frequently limited records for the boards to consider, often through no fault of the veteran, in resolving appeals for relief. This clarifying guidance ensures fair and consistent standards of review for veterans with mental health conditions, or who experienced sexual assault or sexual harassment regardless of when they served or in which Military Department they served. Liberal consideration will be given 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 sexual assault. 6. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the Army Military Human Resource Records (AMHRR), which includes the OMPF. The OMPF is an administrative record as well as the official permanent record of military service belonging to a Soldier. It remains in Army control for 62 years from a Soldier's final separation date and is transferred to the control of the National Archives and Records Administration upon the 63rd year. The regulation provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by, among other agencies, the ABCMR. ABCMR Record of Proceedings (cont) AR20190003273 1 1