IN THE CASE OF: BOARD DATE: 15 August 2022 DOCKET NUMBER: AR20210014831 APPLICANT REQUESTS: correction of his records to show he received an honorable discharge instead of an uncharacterized discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge Form the Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Letter of Summary Benefits, Department of Veterans Affairs, * Personal Statement * Commercial Driver License FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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 he wants his character of service changed from uncharacterized to honorable on his DD Form 214, which will allow me to get Military ID and all benefits associated with an honorable discharge. He requested an early discharge due to a sexual assault which was not disclosed until Psychiatric treatment December 2018. He adds in a letter addressed to the Department of Veterans Affairs: a. He entered the Army on 21 August 1991 and had planned to make a career out of it. After basic training, he was assigned to Fort Sam Houston, TX to be trained as a medic. He was sexually assaulted in an empty barracks on base. He was full of fear and anger, and he was too embarrassed to talk about it. So, he requested a discharge without giving a reason. He was afraid this might happen again. He apologizes for this behavior, but it was solely due to the assault. b. He never told anyone what happened until June 2018 when he sought help at the VA Medical Center. He was diagnosed with military sexual trauma, post-traumatic stress disorder with a rating of 100%, permanent and total. He is sure the only reason he received this character of service was solely due to the assault he suffered in service, which led him to request a discharge. 3. Review of the applicant’s service records shows: a. The applicant enlisted in the Regular Army on 21 August 1991. He completed basic combat training at Fort Jackson, SC and was reassigned to Fort Sam Houston, TX for advanced individual training. b. During training, in addition to being frequently counseled for infractions, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on/for: * 21 November 1991, for disobeying a lawful order by wrongfully possessing and consuming alcohol. * 8 January 1992, being found drunk on duty as a fireguard and for being absent from his appointed place of duty from 20 to 21 December 1991. c. On 15 January 1992, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of chapter 11 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), due to entry-level performance and conduct: because he had shown a lack of maturity and dedication to a military lifestyle and was unlikely to progress and become a productive soldier. The immediate commander recommended an entry-level separation. d. On 15 January 1992, the applicant acknowledged receipt of the separation notification in accordance with chapter 11 of AR 635-200. He consulted with counsel who advised him of the basis for the contemplated action to separate him for entry level performance, the effects of this separation, the rights available to him, and the effects of any action taken by him in waiving his rights. He acknowledged he understood if the request for discharge were approved, he would receive an entry-level separation with uncharacterized service. He further elected not to submit a statement in his own behalf. e. After the applicant's acknowledgement, the immediate commander initiated separation action against him in accordance with chapter 11 of AR 635-200. The immediate commander stated the applicant denied he had a problem with alcohol. He showed a pattern of misconduct and refused to recognize the problem and will not likely respond to treatment. f. The separation authority approved the applicant's discharge under the provisions of chapter 11, AR 635-200, and directed the applicant’s service be uncharacterized. Accordingly, the applicant was discharged on 27 January 1992. g. His DD Form 214 confirms he was discharged due to entry-level performance and conduct in accordance with chapter 11 of AR 635-200 with uncharacterized service. He completed 5 months and 7 days (157 days) of creditable active military service. h. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 5. By regulation, a separation is described as an entry-level separation if processing is initiated while a member is in an entry-level status. The exceptions are when the characterization of under other than honorable condition is authorized or when the Secretary of the Army, on a case-by-case basis, determines that, an honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an under other than honorable conditions discharge. 6. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 7. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Solutions (HAIMS) were not in use at the time of his service. His hardcopy military medical record was not available for review. A review of his service record indicates the applicant has two alcohol related incidents and requested to see a drug and alcohol counselor. The applicant asserts PTSD is an issue related to his request for a change to his characterization of service. A review of the Joint Legacy Viewer (JLV) indicates the applicant has received medical care in the VA since March 1994. On 13 Apr 1994, he was admitted for detox. He reported being a “weekend warrior” drinking two 40 ounce beers and several mixed drinks per day and smoking $150 of crack per weekend. He was stabilized and discharged on 19 Apr 1994 with diagnoses of Alcohol and Crack Dependency and rule out for Passive Aggressive Personality Disorder. He completed the Compensation and Pension process and received service connected disability ratings for lumbosacral or cervical strain and limited flexion of knee. He was admitted for detox on 28 Mar 1997. He was discharged on 31 Mar 1997 with diagnosis of Alcohol, Cocaine, and Cannabis Dependency. In June 1997, he was enrolled in Vocational Rehabilitation program. He was disenrolled in the program on 4 Sept 1997 when he started the work study program. On 18 Dec 2001, he was seen for a therapy intake. He reported difficulty with anger management and continued sobriety. He noted beginning to use substances (alcohol and cannabis) at the age of 12. He started stealing crack cocaine at the age of 21. He reported current difficulties were due to marital problems. He reported history of explosive aggressive behavior leading to assaultive acts. He was enrolled in anger management. He did not return to behavioral health until 22 Oct 2007. He reported acute stress and anger at his job. He had 9 years of employment at the post office. He reported his supervisor made comments about his work and they are understaffed. He is very angry at his boss and afraid of what he will do. He reported significant financial stress with 6 rental properties which were all in default. At the conclusion of the session, the applicant stated he believes he is able to handle the situation and requires no further intervention. His next behavioral health appointment was 8 Jun 2009. He reported sever marital problems and had filed for divorce. He reported he lost all his rental properties to foreclosure but can’t file for bankruptcy due to previous bankruptcy in 2002. He was diagnosed with Partner Relational problem. On 10 Dec 2009, he reported being on medical leave and his workman’s compensation benefits had run out. On 12 Jan 2010, he reported improved mood and plans to move to new location for his job with the post office. Therapy was terminated. On 29 Aug 2012, he returned to behavioral health for treatment. He reported that he has a “beautiful life and beautiful wife but has a wandering eye for other women.” He reported guilt over extreme attraction to woman other than his wife. He did not meet diagnostic criteria for a psychiatric condition. On 12 Sept 2012, he reported ending his affair and was ready to choose his family and wants to be a reliable man for them. He had 1 follow-up appointment and then discontinued treatment. On 28 Aug 2015, he returned to behavioral health treatment due to occupation stress. He reported filing multiple EEO complaints due to his post office supervisor treatment hm differently than other employees. He was diagnosed with Adjustment Disorder. He did not return for follow-up appointments. On 30 May 2018, he returned to behavioral health. He reported a recent incident in the pool locker room brought back memories of MST during basic training. On 11 Jul 2018, he was seen for a psychotropic medication evaluation. He was diagnosed with Unspecified Depression Disorder, Alcohol Use Disorder, and Personality Disorder. He was started on Clonidine and Doxepin. On 17 Jul 2018, he was started on Naltrexone to assist with stopping alcohol use. On 19 Sept 2018, his diagnosis was changed to PTSD and Major Depressive Disorder (MDD). Effective 25 Jul 2018, he received a service connected disability rating for PTSD. His PTSD rating was increased to 100% effective 19 Sept 2019. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is documentation to support a behavioral health diagnosis at the time of his discharge. He met retention standards at the time of his discharge. While the applicant has a service connected rating for PTSD, there is no impact with respect to mitigation. An uncharacterized discharge is given to individuals who separate prior to completing 180 days of military service, or when the discharge action was initiated prior to 180 days of service. This type of discharge does not attempt to characterize service as good or bad. No change in his characterization is warranted. a. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) Yes (2) Did the condition exist or experience occur during military service? (a) Yes (3) Does the condition experience actually excuse or mitigate the discharge? (a) No (4) Does the condition or experience outweigh the discharge? (a) No BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief not warranted. The Board carefully considered the applicant’s contentions, military record, regulatory guidance and published DoD guidance for consideration of discharge upgrade requests. The Board considered the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board considered the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct and weigh in favor of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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, United States 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. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 describes the different types of service characterization. An uncharacterized separation is an entry-level separation. A separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status. The only exceptions are when the characterization of under other than honorable condition is authorized or when the Secretary of the Army, on a case-by-case basis, determines that, an honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service. b. Chapter 11 sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry-level status. It states when separation of a member in entry-level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, the member normally will be separated per this chapter. This separation policy applies to enlisted members of the Regular Army who have completed no more than 180 days active duty on their current enlistment by the date of separation and have demonstrated they are not qualified for retention for one or more of the following reasons: * cannot or will not adapt socially or emotionally to military life * cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline * have demonstrated character and behavior characteristics not compatible with satisfactory continued service * failed to respond to counseling 3. 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. 4. 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; TBI; sexual assault; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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. 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 based on equity, injustice, or clemency grounds, BCM/NRs 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. 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) AR20210014831 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1