IN THE CASE OF: BOARD DATE: 17 May 1023 DOCKET NUMBER: AR20220010793 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 18 August 2022 * Self-authored Letter 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: a. His Battalion went to the "Big Island" of Hawaii for a month of training. They went into town for recreation and after the day they had to go back to the waiting area for the Army truck to come get them. A noncommissioned officer (NCO) from his unit was waiting in a car and told him to come over and talk. They saw two women walking and the NCO told him to go back to the waiting area. While he was waiting the NCO called him back to the car he was sitting in with the two women. One was in front with him, and one was in the back seat. He told the applicant to sit in back and he did. The woman in the back unzipped his pants and started giving him fellatio. That’s when he discovered it was not a woman, but a man. He was so freaked out that it was happening to him, and that the NCO had him set up for such a way. He felt he could not trust anyone ever. He told no one because he was so ashamed of what had happened. He was so freaked out that he was afraid he would die because of what he had been through. b. After going back to his unit, he caught a plane back home. He was picked up by law enforcement and transported to the Fort Jackson, SC, stockade. From there he was then sent to prison in Fort Bragg, NC, He sat for more than a month before a Judge Advocate General (JAG) officer prepped him for his court appearance. He told the applicant to tell the court officer that he would run away again, if sent to another base; he was told not to say anything other than that. At sentencing he repeated what he was told by the JAG officer. He was released a few days later with an undesirable discharge. Old wounds never heal; he hasn’t shared this with anyone until now. 3. On his DD Form 149, the applicant notes sexual assault/harassment as a contributing and mitigating factor in the circumstances that resulted in his separation. 4. On 1 September 1972, the applicant enlisted in the Regular Army, for 3 years. Upon completion of training, he was awarded military occupational specialty 11C (Indirect Fire Crewman). 5. On 27 November 1972, the applicant accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 24 November 1972 to on or about 26 November 1972. His punishment included forfeiture of $61.00 pay and 14 days restriction and extra duty. 6. On 31 August 1973, the applicant accepted NJP under Article 15 of the UCMJ, for being AWOL from on or about 16 July 1973 to on or about 6 August 1973. His punishment included forfeiture of $171.00 pay for two months, and 21 days in correctional custody. 7. On or about 15 January 1974, the applicant was reported as AWOL and remained absent until on or about 18 March 1974. 8. Court-martial charges were preferred against the applicant for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 15 January 1974, through on or about 19 March 1974. 9. The applicant consulted with legal counsel on or about 26 March 1974, 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 him. 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 his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veteran’s Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He elected to submit a statement in his own behalf; however, his available record is void of a statement. 10. On 2 April 1974, the applicant underwent a mental status evaluation. He was psychiatrically cleared to understand and participate in board proceedings deemed appropriate by the command 11. On 4 April 1974, the applicant's immediate commander recommended approval of his request for discharge in lieu of court-martial. By legal review on 10 April 1974, the applicant’s Chapter 10, separation action was found to be legally sufficient for further processing. 12. Consistent with the chain of command's recommendation, the separation authority on 12 April 1974, approved the applicant's request for discharge in lieu of court-martial. He directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 13. The applicant was discharged on 3 May 1974. His DD Form 214 (Report of Separation from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, with separation program designator code 246 (discharge for the good of the service). His service was characterized as UOTHC. He completed 1 year, 4 months, and 23 days of net active service this period, with 100 days of lost time. 14. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. The applicant has provided no evidence that would indicate the contrary 15. In the processing of this case, a search of the Criminal Investigation Division database was requested for a Report of Investigation and/or Military Police Report pertaining to the applicant. The search revealed no records pertaining to the applicant. 16. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. ? 17. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) discharge. He contends he experienced military sexual trauma (MST) that mitigated his misconduct. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted in the Regular Army on 1 September 1972; 2) The applicant accepted non judicial punishment twice for going AWOL from 24-26 November 1972 and then again for going AWOL from 16 July-6 August 1973; 3) Court-martial charges were preferred against the applicant for with being AWOL again a third time from 15 January- 19 March 1974; 4) The applicant was discharged on 3 May 1974, Chapter 10, for the good of the service. His service was characterized as UOTHC. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) was also examined. d. The applicant asserts he experienced MST while he was stationed in Hawaii. The event of MST involved a sexual situation where the applicant felt his NCO purposefully deceived him, and he did not feel comfortable continuing in training exercises with this individual. There is no evidence the applicant reported mental health symptoms while on active service, and he was psychiatrically cleared for administrative separation after his Mental Status Exam on 2 April 1974. A review of JLV was void of any medical documentation. The applicant receives no service-connected disability. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence to support the applicant had condition or experience that partially mitigated his misconduct. Kurta Questions 1. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing MST that contributed to his misconduct. 2. Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing an MST while on active service. 3. Does the condition experience actually excuse or mitigate the discharge? Partial. In accordance with the liberal consideration memo, the applicant’s contention of MST alone is sufficient to be considered by the board in reaching its final determination. In addition, there is a nexus between applicant’s MST and the avoidant behavior of going AWOL. However, the applicant had a previous history of being found AWOL, which seemed to be a pattern prior to this event. It is likely the experience of MST was distressing and left the applicant feeling distrustful of his leadership which increased the likelihood this behavior would reoccur. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was 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. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding there is sufficient evidence to support the applicant had condition or experience that partially mitigated his misconduct. The Board noted the advisory opine stating there is sufficient evidence to support the applicant had condition or experience that partially mitigated his misconduct. The Board agreed, based on liberal consideration, the preponderance of evidence and the advising official, the Board found relief was warranted for an upgrade to general under honorable conditions. 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 amending the applicant’s DD Form 214 for the period ending 3 May 1974 to show his characterization of service as general under honorable conditions. 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 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. 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. 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 UOTHC discharge was normally considered appropriate. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service 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. 5. 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 (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 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. 6. 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) AR20220010793 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1