IN THE CASE OF: BOARD DATE: 14 April 2022 DOCKET NUMBER: AR20210016630 APPLICANT REQUESTS: * upgrade his under honorable conditions (general) discharge to honorable * change the separation code * change the reentry code * change the narrative reason for separation * an honorable discharge certificate APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 149 (Application for Correction of Military Record)” * DD Form 214 (Report of Separation from Active Duty) * 2 x Department of Veteran Affairs (VA) Document Decisions FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records 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 indicates on his applications that post-traumatic stress disorder (PTSD), sexual assault/harassment, and transgender issues are related to his request. He states he was a victim of rape while on base at Fort Benning, Georgia. The attackers were court-martialed and sent to prison. He has been in counseling because of the rape for years. The VA has awarded him 100 percent disability for mental health issues with depression and anxiety connected to his military service in the Army. He is asking for his character of discharge to be upgraded from under honorable conditions (general) to honorable with associated codes upgraded. If the Board decides to upgrade his discharge, he would like to receive a new DD Form 214 instead of a DD Form 215 (Correction to DD Form 214). He would also like to request a certificate of his Army service suitable for framing. 3. The applicant provides two VA Decision Documents, which show on: a. 8 June 2014, a temporary evaluation of 100 percent had been assigned effective 6 October 2011 because of hospitalization over 21 days. An evaluation of 70 percent was assigned from 1 December 2011. An evaluation of 100 percent is assigned because of hospitalization over 21 days from 3 December 2012. An evaluation 70 percent is assigned from 1 January 2013. An evaluation of 100 percent is assigned because of hospitalization over 21 days from 24 June 2013. An evaluation of 70 percent is assigned from 1 September 2013. Entitlement to individual unemployability is granted effective 6 October 2009. b. 12 October 2011, service connection for PTSD was granted with an evaluation of 70 percent effective 6 October 2009. 4. On 3 February 1976, the applicant enlisted into the US Army Reserve (USAR) delayed entry program (DEP), at the age of 17 years, for a period of 6 years. On 5 February 1976, he was discharged from the USAR DEP and entered active duty for a period of 3 years. His DA Form 2-1 (Personnel Qualification Record) shows he entered basic training on 13 February 1976 and advanced individual training on 19 April 1976. 5. On 6 May 1976, special orders were published awarding the applicant military occupational specialty 11C (Indirect Fire Infantryman). 6. On 28 June 1976, the applicant accepted nonjudicial punishment for falsifying a profile. His punishment included forfeiture of $84.00 and 14 days' extra duty and restriction. 7. On 7 July 1976, the applicant's duty status was changed from present for duty to confinement by military authorities. He had been placed in pretrial confinement. 8. On 8 July 1976, the applicant's commander preferred court-martial charges against the applicant for: * being disrespectful toward a commissioned officer on two occasions * disobeying a lawful command of a commissioned officer 9. On 19 July 1976, the applicant's duty status was changed from confinement by military authorities to hospitalized. He had an injury. On 26 July 1976, his duty status was changed from hospital to present for duty. He had been absent 8 days. 10. On 25 August 1976, the applicant accepted NJP for absenting himself from his unit from on or about 21 August 1976 to on or about 23 August 1976. His punishment was forfeiture of $50.00. He did not appeal his punishment. 11. On 2 September 1976, his duty status was changed from present for duty to confinement by military authorities. He had been placed in pretrial confinement. 12. On 22 September 1976, the applicant requested excess leave. His chain of command recommended approval of the excess leave. The approval authority approved the applicant's request for excess leave. 13. On 19 October 1976, a Special Court-Martial Order was published and shows the applicant was tried by Special Court-Martial on 22 September 1976. The applicant was found guilty of being disrespectful to a commissioned officer and disobeying a lawful command of a commissioned officer. He was sentenced to separation from the service with a bad-conduct discharge, forfeiture of $150 for four months, and confinement with at hard labor for four months. On 19 October 1976, the convening authority stated the sentence was approved, but the execution of the portion thereof adjudging confinement at hard labor and forfeiture of pay was suspended for six months. 14. On 23 February 1977, the applicant's duty status was changed from excess leave to present for duty. 15. Sometime after 23 February 1977, after consulting with counsel, the applicant voluntarily requested separation for the good of the service, and in lieu of trial by court- martial, per chapter 10 (Discharge for the Good of the Service), Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel). In his request, the applicant affirmed no one had subjected him to coercion, and that his counsel had advised him of the implications of a separation under the provisions of chapter 10, Army Regulation 635- 200; in addition, the applicant acknowledged he was guilty of the charges. The applicant elected not to submit a statement in his own behalf. 16. The applicant's chain of command recommended approval of the applicant's request and on 9 March 1977 the appropriate approval authority approved the applicant's request for discharge with the issuance of an under honorable conditions (general) discharge. Court-martial charges pending against the applicant would be dismissed. 17. On 14 March 1977, a Special Court-Martial Order was published stating the findings and of guilty and the sentence adjudged on 22 September 1976 were set aside on 2 February 1977. The charges were dismissed. All rights, privileges, and property of which the accused had been deprived by virtue of the findings of guilty and the sentence so set aside would be restored. 18. On 23 March 1977, a memorandum stated the reason for the applicant's separation was administrative discharge - conduct triable by court-martial. He was assigned reenlistment code RE-3 indicating he was not eligible for immediate reenlistment unless waiver consideration was permissible and was granted. 19. On 23 March 1977, the applicant was discharged accordingly. His DD Form 214 shows he had served 1 year, 1 month, and 10 days of net active service this period. He had lost time from 19 to 24 July 1976 and 21 to 23 August 1976. 20. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 21. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. a. The applicant asserts his PTSD was a mitigating factor for his misconduct. A review of the VA's Joint Legacy Viewer indicates the applicant has a service connected disability rating for PTSD effective 6 October 2009. His rating was increased to 70% effective 1 September 2013. b. There is documentation to support a behavioral health diagnosis at the time of his discharge. There is no information regarding the misconduct that led to his discharge thus an opine regarding mitigation cannot be provided. * Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. * Did the condition exist or experience occur during military service? Yes. * Does the condition or experience actually excuse or mitigate the discharge? Unknown. * Does the condition or experience outweigh the discharge? Unknown. BOARD DISCUSSION: 1. 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, his record of service, the frequency and nature of his misconduct and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA Medical Advisor. 2. A majority of the Board found insufficient evidence of in-service mitigating factors, noting that the action to set aside the applicant's court-martial sentence and allow him to request voluntary discharge in lieu of trial by court-martial shows the Army took action at the time to remedy an injustice. Further, in spite of the documented misconduct, the applicant was given an under honorable conditions (general) character of service with a type of discharge that normally warrants an under other than honorable conditions character of service. The Board found the character of service he received also indicates the Army took action to remedy an injustice prior to his separation. Based on a preponderance of evidence, a majority of the Board determined the character of service the applicant received upon separation was not in error or unjust. 3. The member in the minority found partial relief is warranted. The member in the minority found the applicant's statement regarding being a victim of sexual assault and his PTSD diagnosis sufficient as a basis for partial relief. The member in the minority determined his character of service should be changed to honorable. 4. The Board unanimously determined the reason for his separation and the associated codes were not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :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, 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 Army Board for Correction of Military Records (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, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. An honorable discharge was a separation with honor. Issuance of an honorable discharge was conditioned upon proper military behavior and proficient duty performance. A Soldier's service was to be characterized as honorable based on conduct ratings of at least "Good"; efficiency ratings of at least "Fair"; no general court- martial, and no more than one special court-martial conviction. b. Chapter 10 permitted a Soldier to request discharge for the good of the service when they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial, United States 1969 (Revised Edition), included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Once approved, an undesirable discharge was normally furnished, but the discharge authority could direct either an honorable or general discharge, if warranted. 3. The Manual for Courts-Martial, Table of Maximum Punishments showed a punitive discharge was a punishment allowed for disobeying a lawful command of an officer and disrespecting an officer. 4. Army Regulation 635-5 (Personal Separations) is the source document for completing the DD Form 214. It states for item 9c (Authority and reason) do not enter a narrative reason for separation in this item. Type a dashed line on all copies furnished the individual and VA. 5. Army Regulation 601-280 (Army Reenlistment Program) Section VII Moral and Administrative Disqualifications states persons being discharge from the current term of service for the good of the service under the provisions of Chapter 10, Army Regulation 635-200 would receive an RE-3 code. 6. 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. 7. 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 (TBI); 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. 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. 8. 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. 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, 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. 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) AR20210016630 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1