IN THE CASE OF: BOARD DATE: 21 June 2023 DOCKET NUMBER: AR20220011474 APPLICANT REQUESTS: Reconsideration of his previous request for an upgrade of his under other than honorable conditions (UOTHC) discharge to either under honorable conditions (general) or honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 9 August 2022 * Psychiatrist Letter, dated 10 June 2022 * Self-authored Letter, dated 9 August 2022 * Character Reference Letters (5) * DD Form 214 (Report of Separation from Active Duty), dated 13 June 1975 * Veteran Affairs (VA) Form 21-0781 (Statement in Support of Claim for Service Connection for Post-traumatic Stress Disorder (PTSD)), dated 13 October 2016 * Mental Status Evaluation * Self-authored Letter, dated 16 September 2016 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20170008644 on 13 November 2020. 2. In a new argument, the applicant states: a. His discharge was improper. He was a medic and suffered from post-traumatic stress disorder (PTSD). This condition was not treated while he was in the Army. If treated, perhaps he would have received a better discharge. Prior to the alleged occurrence, he was an exemplary Soldier and was in line for a promotion. The incidents described in his record are inconsistent with his character. If he had been accurately described, his discharge status would have been different. He was in the Army during the 1970’s when there was a great deal of prejudice and discrimination against people of color. He was a victim too. b. He never knew what the charges against him were until he requested his records. One of the alleged victims said that he did not assault her. The trial was postponed more, than once. The judge recused himself from the case and no new judge was assigned. He could not afford an attorney so; he was assigned one. He feels that he had poor representation. He was advised to resign from the Army to avoid the possibility of being sent to the stockade. No effort was made to free him from the allegations against him. c. As a civilian, he became a tractor trailer truck driver for approximately twenty years. He was the lead truck driver at a chemical company. He has been married for thirty-nine years with two sons. He is an upstanding voting citizen with no criminal record. d. In the Army, he was a medic. As such, he incurred insomnia, nightmares, and flashbacks. These occurrences have continued after his discharge from the Army. He suffered a stroke and a heart attack which ended his career as a truck driver. He currently wears a pacemaker and receives psychiatric treatment for PTSD. Perhaps he would have received a better discharge if the military had recognized his situation and helped him. 3. On 25 April 1973, the applicant enlisted in the Regular Army for 3 years. Upon completion of training, he was awarded military occupational specialty 91B (Medical Specialist). The highest grade he attained was E-4. 4. Court-martial charges were preferred against the applicant on 25 September 1974 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with two specifications of committing indecent assaults on two different women, with the intent to gratify his sexual desires, on or about 10 September 1974 and 16 September 1974; and one specification of taking indecent liberties with a female under the sixteen years of age, on or about 15 July 1974. 5. The applicant consulted with legal counsel on or about 18 April 1975, 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 Veterans 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. He stated that he was charged with something he believed in all sincerity that he was innocent of, that he did not have anything to defend himself with, and he was sufficiently certain that he would be convicted. He felt that taking this discharge would give him at least half a chance to better himself. 6. On 25 April 1975, the applicant's commander recommended approval of the applicant's request for discharge with issuance of an undesirable discharge certificate. 7. Consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge on 3 June 1975 and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 8. The applicant was discharged on 13 June 1975. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He completed 2 years, 1 month, and 19 days of net active service this period. 9. The applicant petitioned the ABCMR requesting upgrade of his UOTHC discharge. On 13 November 2020, the Board determined the overall merits of this case were insufficient as a basis for correction of his records and voted to deny relief. 10. The applicant provides the following documents that are available in entirety for the Boards consideration: a. A letter from a psychiatrist that states he has treated the applicant for over 5 years for severe anxiety and depression secondary to PTSD. He further states that the applicant suffered a heart and had a pacemaker implanted in 2004. However, this trauma was preceded by trauma experienced while serving in the Army at a military hospital. His duties included stripping bedsheets and cleaning Soldiers who were sometimes severely injured. He also had to wheel deceased Soldiers down to the hospital morgue. He described being mentally overwhelmed by these intensely disturbing tasks. b. Five character reference letters that collectively attest to the applicant's trustworthiness, respect for others, his faith, dependability, and the support he provided others. Several letters speak to his memory lapses due to his Army experiences. c. A VA Form 21-0781 wherein he provided his statement to the VA describing the incident in support of his disability compensation application. He states that shortly after he began his assignment, he began to wake up from nightmares. He could not sleep. It continued even after he was discharged. d. A Mental Status Evaluation from Los Angeles County Department of Health, dated 28 December 2016, that shows he was evaluated for mental health issues. e. A self-authored letter dated 16 September 2016, wherein he describes his duties as a medic in the Army, which included transporting dead bodies. As a result he has recurring visions of deceased Soldiers. He cannot attend funerals or viewings of deceased persons. He has suffered memory loss and experienced being disoriented. 11. The applicant did not provide any documents supporting his contention of procedural irregularities regarding his court-martial charges. 12. 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. 13. 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. 14. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requests reconsideration of his request for an upgrade of his under other than honorable conditions (UOTHC) character of service. He asserts he was experiencing PTSD and racism during his active service, which mitigates to 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 into the Regular Army on 25 April 1973; 2) Court-martial charges were preferred against the applicant on 25 September 1974 for two specifications of committing indecent assaults on two different women on 10 September 1974 and 16 September 1974 and one specification of taking indecent liberties with a female under the sixteen years of age on 15 July 1974; 3) The applicant was discharged on 13 June 1975, Chapter 10, for the good of the service – in lieu of trial by court-martial. His characterization of service was UOTHC; 4) The ABCMR reviewed and denied the applicant's petition for an upgrade of his discharge on 13 November 2020. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) and additional civilian medical documents were also examined. d. The applicant contends he experienced racism and PTSD while on active service, which mitigates his misconduct. There is no evidence the applicant reported mental health symptoms or racism while on active service. A review of JLV provided evidence of one behavioral health encounter on 9 March 2023. The applicant was diagnosed with depression, but his behavioral health symptoms were not attributed to his active service. The applicant receives no service-connected disability. The applicant did provide a letter from a psychiatrist dated 10 June 2022 from, . The psychiatrist stated he has treated the applicant for 5.5 years, and he described the applicant as suffering from severe anxiety and depression secondary from PTSD. He reported the applicant experienced trauma as a medic by engaging in activities such as cleaning linens and soldiers who were severely injured and wheeling deceased soldiers down to the morgue. He also reported the applicant had a lower-than-average IQ. However, this report of IQ would be inconsistent with the requirements of the applicant’s military specialty at the time of his enlistment. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. 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 he was experiencing racism and PTSD that mitigates his misconduct. 2. Did the condition exist or experience occur during military service? Yes, the applicant contends he was experiencing racism and PTSD while on active service. 3. Does the condition or experience actually excuse or mitigate the discharge? No, there is insufficient evidence the applicant was experiencing racism or PTSD while on active service. In addition, there is no nexus between racism or PTSD and the applicant’s misconduct of sexual assault and sexual assault of a minor given that: 1) this type of misconduct is not part of the natural history or sequelae of racism or PTSD; 2) PTSD and racism does not affect one’s ability to distinguish right from wrong and act in accordance with the right. However, the applicant contends he was experiencing an experience and a mental health condition that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not 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 insufficient evidence the applicant was experiencing racism or PTSD while on active service. In addition, there is no nexus between racism or PTSD and the applicant’s misconduct of sexual assault and sexual assault of a minor. The Board noted there no evidence the applicant reported mental health symptoms or racism while on active service. 2. The Board found in the record, during deliberation one behavioral health encounter on 9 March 2023. The Board determined the applicant was diagnosed with depression, but his behavioral health symptoms were not attributed to his active service. It was noted the applicant receives no service-connected disability. Furthermore, the applicant provided a letter from a psychiatrist dated 10 June 2022. The psychiatrist stated he has treated the applicant for 5.5 years, and he described the applicant as suffering from severe anxiety and depression secondary from PTSD. The Board applauds the applicant’s post service achievements and his letters of support attesting to his honorable conduct since discharge. However, the Board determined the applicant’s misconduct is not part of the natural history or sequelae of racism or PTSD. Additionally, PTSD and racism does not affect one’s ability to distinguish right from wrong and act in accordance with the right. Based on the preponderance of evidence, the Board determined reversal of the previous Board determined is not warranted and denied relief. 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 Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR20170008644 on 13 November 2020. 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 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. 2. Army Regulation 15-185 (ABCMR) sets forth procedures for processing requests for the correction of military records. Paragraph 2-15a governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR. The applicant must provide new relevant evidence or argument that was not considered at the time of the ABCMR's prior consideration. 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, an 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 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) AR20220011474 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1