IN THE CASE OF: BOARD DATE: 23 February 2023 DOCKET NUMBER: AR20220003899 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Medical Record Progress Notes * Department of Veterans Affairs (DVA) eBenefits screenshot FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. 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, in effect, the conduct that led to his discharge was unacceptable. However, he was recently diagnosed with post-traumatic stress disorder (PTSD) and has learned that his conduct was an outlet for his undiagnosed and untreated conditions. He was unaware that he was suffering from severe depression and PTSD until around October 2021. Now, he is pleading with the Board to acknowledge his unwavering devotion to duty, honor, and country for many years. 3. On 25 July 1986, the applicant enlisted in the Regular Army for a period of 3 years. He served through a series of reenlistments while working in positions of increasing responsibility at multiple duty stations. 4. The applicant served in Southwest Asia from 28 January 1991 until 8 March 1991. He was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 March 1999. On 13 June 1999, he was assigned to the U.S. Army Recruiting Battalion, Portland, OR with duty as the Station Commander at the Yrekia, CA, Recruiting Station. He was married at the time. 5. On 9 April 2001, the Commander of Redding Recruiting Company, Redding, CA rendered a memorandum, Subject: Commander's Inquiry, ref: [the applicant], an investigation had been conducted to determine if the applicant engaged in improper/unprofessional conversation or actions. As a result of the investigation, the commander found that sufficient evidence existed to substantiate the allegations that the applicant had made crude and unprofessional remarks toward two women while in the presence of two delayed entry program (DEP) Soldiers. The applicant realized he made several mistakes and was apologetic. The commander recommended the applicant receive a Battalion Letter of Concern to be filed in his local records and removed upon his departure. He further recommended the applicant be required to conduct training on prevention of sexual harassment/consideration of others. 6. On 11 April 2001, the applicant's immediate commander suspended him from his recruiting duties per his written order and vocal order, effective 11 April 2001. The reason for this action was the fact that the applicant was under investigation for misconduct under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations). The applicant was ordered to not visit the office; to not communicate with a list of specific individuals as well as any DEP Soldiers, applicants, or prospects, and to immediately relinquish his laptop computer, office keys, and government cellular telephone. The applicant was advised that continued misconduct could result in initiation of separation action to eliminate him from the Army. 7. On 16 April 2001, the applicant's immediate commander issued him a no contact order forbidding him from having any contact with three women or any of their acquaintances, prospects, DEP Soldiers, or applicants. He was advised that violation of this order would constitute a violation of Article 90, of the Uniform Code of Military Justice (UCMJ). 8. A U.S. Army Recruiting Command (USAREC) Form 958 (Incident Information Report), dated 19 April 2001, shows an incident occurred on or about 7 April 2001, in which the applicant and another recruiter (SSG H) allegedly had sex with two individuals believed to be potential recruiting prospects (SC and MR). SSG contacted his Company First Sergeant (1SG) and requested to meet with the 1SG and/or commander to make a statement. SSG rendered a sworn statement wherein he admitted to having sex with one of the women and further stated the applicant had engaged in previous sexual encounters with both women and a third woman () at some other time. and were presumed to be applicants and believed to be 19 years of age. was presumed to be an applicant as well and was a senior in high school. Further investigation revealed one of the women was underage at the time of the alleged sexual incidents. Local law authorities had become involved, and it was believed that the local media had been notified. There was a high probability that the applicant and SSG would be arrested and formally charged. 9. A USAREC Form 958, dated 26 April 2001, shows the applicant's battalion commander was informed that the applicant was arrested, taken to the Siskiyou County Jail, and charged with nine counts: * two counts of sexual penetration with a foreign object * two counts of oral sex with a minor under 18 years of age * one count of sexual battery by resistance * two counts of oral copulation with minors under 18 years of age * one count of persuading a witness to a crime * one count of attempted molestation with a minor under 18 years of age 10. A USAREC Form 958, dated 3 May 2001, shows the applicant had been released on bail following his previous arrest, but would most likely be arrested again on separate, but related charges. Following local media reporting, additional witnesses/victims had come forward against the applicant. Police had taken statements from two separate witnesses, which brought the total number of alleged victims to five females, the youngest of which was 15 years of age. It was likely he would be charged with sexual battery and lewd behavior. 11. An officer was appointed to investigate whether the applicant and SSG had inappropriate relationships with prospects/applicants in violation of USAREC Regulation 600-25 (Prohibited and Regulated Activities) and if sexual misconduct took place between the two recruiters and any other person(s), not their wives (all allied documents are available in their entirety for the Board). a. All three females identified in the investigation, (19), (19), and (17) were applicants. b. The investigating officer (IO) provided a timeline of events. c. The applicant invoked his rights under Article 31, of the UCMJ and was therefore, not interviewed. d. The IO provided detailed and graphic accounts of statements provided during interviews he and local police conducted with SSG and the alleged victims. e. The IO found the applicant and SSG had inappropriate relationships with prospects/applicants. Specifically, the applicant: * had at least three unauthorized relationships * misused government equipment numerous times when entertaining the females in both the office and government owned vehicle (GOV) * provided alcohol to and * violated the No Contact Order by approaching both and and possibly by continuing to speak to after she approached him f. The IO found that sexual misconduct took place between the two recruiters and other persons, not their wives. Given that four of the five personnel admitted a sexual relationship and the applicant had been witnessed to have a close personal relationship with all three females and admitted to SSG his sexual involvement with all three females, the credible and probable conclusion was that both recruiters were guilty of sexual misconduct. Furthermore, the IO believed based upon the method of operation the applicant had demonstrated in his pursuit of the three females and his admissions regarding other extramarital relationships to two of them, it was quite probable that the applicant was guilty on other incidents of sexual misconduct. g. The IO recommended, in part, a court-martial for the applicant and also a greater investigation into possible past incidents in previously assigned locations. It was apparent the applicant misused his position repeatedly to appease his own needs. 12. On 5 June 2001, the applicant's immediate commander notified the applicant of his intent to initiate actions to separate him under the provisions of Army Regulation 635- 200, paragraph 14-12c, by reason of misconduct (serious offense). The commander informed the applicant he was recommending he be separated with a discharge UOTHC. 13. On 12 June 2001, the applicant underwent a mental status evaluation to determine whether he was suitable for administrative separation proceedings. The examining psychologist opined the applicant was cleared for any administrative actions deemed appropriate by command. 14. On 12 June 2001, the applicant underwent a pre-separation medical exam. It was noted that he was currently being treated for depression but had no significant diagnoses or conditions that warranted referral to the Physical Disability Evaluation System. He was determined to be qualified for retention and/or administrative separation. 15. On 2 July 2001, the applicant consulted with counsel and was advised of the basis for the contemplated actions to separate him and its effects; of the rights available to him; and the effect of any action taken by him to waive his rights. He requested representation by consulting military counsel and to appear in person before an administrative separation board if his service was characterized less favorably than honorable or under honorable conditions. He elected not to submit statements in his own behalf. 16. On 5 July 2001, the applicant's immediate commander formally recommended his separation prior to the expiration of his term of service, under the provisions of Army Regulation 635-200, Chapter 14, by reason of commission of a serious offense. 17. On 1 August 2001, the applicant's intermediate commander concurred with the recommendation. 18. On 26 August 2001, the applicant was issued a General Officer Memorandum of Reprimand (GOMOR) for misconduct by engaging in inappropriate sexual relationships with three female applicants. Furthermore, he purchased alcohol for two of the applicants and used a GOV to drive one of the applicants to a secluded are so he could have sexual intercourse. After an investigation was initiated, he violated a no contact order and encouraged the victims to lie. The applicant acknowledged receipt of the GOMOR and elected not to make a statement in his own behalf. The applicant's chain of command recommended the GOMOR be filed in his official military personnel file (OMPF). On 26 December 2001, the GOMOR was filed in the applicant's OMPF. 19. On 20 September 2001, the applicant was notified that, a separation board would convene to determine whether he should be discharged. The Board convened on the scheduled date and indicates the following: a. The applicant was afforded an opportunity to call upon any reasonably available witnesses he desired. b. Having carefully considering the evidence before it, the Board found that all but one of the allegations was substantiated. The allegation of sexual battery by restraint was not found to be substantiated. c. The Board recommended the applicant be separated from the Army and that his service be characterized as UOTHC. 20. On 4 December 2001, the separation authority approved the board's findings and directed the applicant be discharged with a service characterization of UOTHC and reduced to the lowest enlisted grade. 21. Orders and the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) show he was discharged on 15 January 2002. His DD Form 214 shows, in: (1) block 12 (Record of Service) – He completed 15 years, 5 months, and 21 days of net active service this period. (2) block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) – He was awarded or authorized the: * Army Commendation Medal (3rd Award) * Army Achievement Medal (4th Award) * National Defense Service Medal * Southwest Asia Service Medal with 1 Bronze Service Star * Noncommissioned Officer Professional Development Ribbon with Numeral 2 * Army Service Ribbon * Army Good Conduct Medal (4th Award) * Overseas Service Ribbon (2nd Award) * Kuwait Liberation Medal – Government of Kuwait * Kuwait Liberation Medal * Expert Marksmanship Qualification Badge with Rifle Bar * Combat Infantryman Badge * Expert Infantryman Badge * Parachutist Badge * Air Assault Badge * Driver and Mechanic Badge with Driver-Wheeled Bar * U.S. Army Gold Recruiter Badge with 3 Sapphire Achievement Stars * U.S. Army Basic Recruiter Badge with 3 Gold Achievement Stars (3) block 18 (Remarks) – He had completed his first full term of service. (3) block 24 (Character of Service) - His characterization of service was UOTHC. (4) block 25 (Separation Authority) - The authority for his separation was Army Regulation 635-200, Paragraph 14-12c. (5) block 26 (Separation Code) - His Separation Program Designator Code was "JKQ." (6) block 27 (Reentry Code) - His Reentry Eligibility (RE) Code was "3." (7) block 28 (Narrative Reason for Separation) - The narrative reason for his separation was misconduct. 22. The applicant petitioned the Army Discharge Review Board for an upgrade of his discharge. On 29 June 2009, the ADRB determined that he was properly and equitably discharged. Accordingly, his request for a change in the characterization of his service was denied. 23. The applicant provides the following documents which are available in their entirety for the Board's consideration: * Progress Notes extracted from his medical records depicting a comprehensive assessment of his mental health on 2 June 2021, particularly persistent depressive disorder symptoms that began after returning from Desert Storm * A screenshot from the DVA eBenefits website that indicates someone has a 90 percent final degree of disability due, in part, to a diagnosis of service connected depressive disorder with unspecified anxiety disorder 24. Published guidance to the Boards for Correction of Military/Navy Records (BCM/NR) clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 25. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) characterization of service to honorable. The applicant contends he was recently diagnosed with post-traumatic stress disorder (PTSD) and has learned that his conduct was an outlet for his undiagnosed and untreated conditions. 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 July 1986; 2) He served in Southwest Asia from 28 January 1991 until 8 March 1991; 3) On 11 April 2001, the applicant's immediate commander suspended him from his recruiting duties per his written order and vocal order, effective 11 April 2001 due to the applicant being under investigation for misconduct under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations); 4) On 16 April 2001, the applicant's immediate commander issued him a no contact order forbidding him from having any contact with three women or any of their acquaintances, prospects, DEP Soldiers, or applicants; 5) A USAREC Form 958, dated 26 April 2001, shows the applicant's battalion commander was informed that the applicant was arrested, taken to the Siskiyou County Jail, and charged with nine counts, as outlined below: * two counts of sexual penetration with a foreign object * two counts of oral sex with a minor under 18 years of age * one count of sexual battery by resistance * two counts of oral copulation with minors under 18 years of age * one count of persuading a witness to a crime * one count of attempted molestation with a minor under 18 years of age c. An officer was appointed to investigate whether the applicant had inappropriate relationships with prospects/applicants in violation of USAREC 600-25. The officer found the applicant had inappropriate relations; 7) On 5 June 2001, the applicant's immediate commander notified the applicant of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (serious offense); 8) The applicant was discharged on 15 January 2002 under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (serious offense). d. The military electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant’s time in service. A review of the VA electronic medical record (JLV) showed the applicant is 100 percent service-connected (SC) and 70 percent SC for Mood Disorder, with an effective date of 2021. VA C&P Examination, dated 23 August 2021, showed the examiner diagnosed the applicant with unspecified depressive disorder and unspecified anxiety disorder that were attributed to his deployment in support of Operation Desert Storm. Symptoms of depression and anxiety reportedly did not exist prior to the deployment and the applicant reportedly had no previous history of BH history. The applicant appears to have first engaged with the VA for BH-related care at the Northern CA VA on 6 May 2021 seeking evaluation and treatment for TBI. The applicant reported exposure to at 3 IED incidents (missile in 1987, Artillery in 1991, and grenade in 1994), with brief LOC (less than one minute). He complained of irritability, poor memory, light sensitivity and headaches, poor concentration, and forgetfulness. Additionally, he reported a history of MDD since 1997 and expressed an interest in evaluation for PTSD due to nightmares. The diagnosis of record for the visit was Encounter for Screening for TBI. He was referred for further outpatient evaluation. e. His next visit appears to have occurred on 2 June 2021. He reported a history of struggling with depression since returning from Operation Desert Storm and reported his symptoms were currently well managed with citalopram. He reported that when not on the medication his symptoms included anhedonia, negative feelings about self, and depressed mood. The applicant also noted a history vivid combat-related dreams immediately after deployment, with a re-occurrence of similar dreams a couple of weeks prior to the current visit. He was diagnosed with persistent depressive disorder with a rule-out of PTSD. He also expressed a desire to wait for a therapy availability at the local VA to begin talk therapy. In the interim he was instructed to continue medication management of symptoms. f. Records suggest the applicant was next seen on or about 4 October 2021 for supportive therapy. The applicant stated not knowing why he was scheduled for the specific appointment but agreed to engage. Provider oriented the applicant to treatment, informed him why he was referred, and that some goals of treatment were to address issues of self-esteem and guilt. The applicant informed the provider of current marital issues and expressed a desire to also address related problems. The encounter note is sparse on additional details: Upon conclusion of the session the applicant was diagnosed with Generalized Anxiety Disorder and Major Depressive Disorder, recurrent, moderate, and scheduled for outpatient treatment. However, except for the VA C&P conducted on 23 August 2021, records appear void of any BH-related visits at a VA facility subsequent the 4 October 2021 visit. VA records appear void of a PTSD diagnosis. g. The applicant contends he was recently diagnosed with PTSD and learned his misconduct was an outlet for his undiagnosed and untreated condition. A review of the records showed that the applicant is currently 70 SC for Mood Disorder, however, records are void of evidence of a diagnosis of PTSD and the applicant did not provide additional evidence supporting his claim. Additionally, even in the event the applicant’s contention of PTSD was taken as factual, his misconduct would not be mitigated by PTSD and is not mitigated by the SC diagnosis of Mood Disorder, as sexual misconduct is not natural sequela of either disorder, as neither disorder impact one’s ability to differentiate between right and wrong and adhere to the right. h. Based on the available information, it is the opinion of the Agency BH Advisor that there is evidence in the records that the applicant had a condition or experience during his time in service, however, the condition did not mitigate his misconduct. However, the applicant contends his misconduct was related to PTSD and per Liberal Consideration guidance his contention is sufficient to warrant the Board’s consideration. 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 is 70 percent SC for Mood Disorder and contend his contends his misconduct was associated with PTSD. It should be noted that although the applicant is SC for mood disorder, records are void of a PTSD diagnosis. 2. Did the condition exist or experience occur during military service? Yes. 3. Does the condition or experience actually excuse or mitigate the discharge? No. The applicant contends he was recently diagnosed with PTSD and has learned his misconduct was an outlet for his undiagnosed and untreated condition. A review of the records showed that the applicant is currently 70 SC for Mood Disorder, however, records are void of evidence of a diagnosis of PTSD and the applicant did not provide additional evidence supporting his claim. Additionally, even in the event the applicant’s contention of PTSD was taken as factual, his misconduct would not be mitigated by PTSD and is not mitigated by the SC diagnosis of Mood Disorder, as repeated sexual misconduct is not natural sequela of either Mood Disorder or PTSD, as neither disorder impact one’s ability to differentiate between right and wrong and adhere to the right. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon the serious misconduct leading to the applicant’s separation and the findings of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice warranting a change to the applicant’s characterization of service. 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, 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. Title 10, USC, Section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (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. a. Paragraph 3-7a provides that 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. Paragraph 3-7b states 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 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 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 merited by the Soldier’s overall record. 4. Army Regulation 635-5-1 provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. It states that the separation code "JKQ" is an appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-12c, by reason of Misconduct (Serious Offense). Additionally, the SPD/RE Code Cross Reference Table established that RE code "3" was the proper reentry code to assign to Soldiers separated under this authority and for this reason. 5. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service 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 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. 6. 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; sexual assault; or sexual harassment. Boards are 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 misconduct that led to the discharge. 7. 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, 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) AR20220003899 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1