IN THE CASE OF: BOARD DATE: 16 March 2023 DOCKET NUMBER: AR20220008181 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge to a more favorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Statement in Support of Claim 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 he would like the character of his discharge changed. He just wanted to forget the incident and didn’t want to deal with it. The issues/conditions related to his request are sexual assault/harassment. 3. The applicant enlisted in the Regular Army on 16 October 2002 for three years. His available record shows he did not complete initial training. 4. The applicant was reported as absent without leave (AWOL) on 5 February 2003 and dropped from rolls as a deserter on 7 March 2003. 5. A DA Form 458 (Charge Sheet) shows charges were preferred against the applicant on 7 March 2003, for violations of the Uniform Code of Military Justice (UCMJ), for without authority and with intent to remain away permanently, absent himself from his unit on or about 5 February 2003 and did remain so absent. 6. A DD Form 616 (Report of return of Absentee) shows the applicant was apprehended by civil authorities in on 14 November 2003 and transferred to Fort Sill, OK. 7. On 14 November 2003, the applicant was held in the Jail, for misdemeanor/failure to appear charges. The warrant was cleared on 16 November 2003, his civilian offenses were: * trespassing * disturbing the peace * simple battery * theft * possession of marijuana * theft by fraud * unauthorized entry of inhabited dwelling * forgery twice * issuing worthless checks * simple criminal damage to property 8. The applicant was returned to military control on 16 January 2004. 9. The applicant’s complete separation packet is not available for review; however, the applicant consulted with legal counsel on 23 January 2004 and was advised of the basis for the contemplated trial by court-martial for being AWOL from 5 February 2003 to 16 January 2004; the maximum permissible punishment authorized under the UCMJ; the possible effects of a UOTHC discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision 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 VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He elected not to submit a statement in his own behalf. c. He did not desire a physical evaluation prior to separation. 10. The applicant’s immediate commander recommended approval of the discharge on 23 March 2004. The commander noted the applicant was AWOL totaling 345 days, and apprehended by civilian authorities. The applicant had become disillusioned with the military. The commander recommended the issuance of an UOTHC discharge. 11. The separation authority approved the applicant's request for discharge in lieu of court-martial on 28 April 2004 and directed the issuance of an UOTHC Discharge Certificate. 12. The applicant was discharged on 28 May 2004. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. He was discharged in the lowest enlisted grade and his characterization of service was UOTHC. He completed 7 months and 28 days of net active service, with one period of lost time. 13. The applicant provides an unsigned VA Statement in Support of Claim, dated 26 April 2022, which states upon his return from Christmas exodus he had been using meth, but the first sergeant couldn’t figure out what was wrong with him. He was placed in a room with multiple Soldiers and was beaten and forced to stay awake for 3 or 4 days. One of them stuck a finger up his anus. He put in a grievance to the lieutenant colonel. The applicant refused to train at that point. He went AWOL from there. Upon discharge at Fort Sill, he put in another grievance. 14. On 2 November 2022, by letter, the U.S. Army Criminal Investigation Command (CID) advised regarding a request for a sanitized copy of information from CID, that a search of the Army criminal file indexes utilizing the information provided revealed no sexual assault records pertaining to the applicant. The records at their center are criminal investigative and military police reports and are indexed by personal identifiers such as names, social security numbers, dates and places of birth and other pertinent data to enable the positive identification of individuals. 15. 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. 16. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 17. Published guidance to the BCM/NRs 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. 18. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting and 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 16 October 2002; 2) The applicant went AWOL from 5 February 2003 -16 January 2004. The applicant was apprehended by civil authorities, and was charged with multiple civilian offenses, but he was transferred over to military control; 3) The applicant’s complete separation packet is not available for review. Despite his civilian charges, the applicant was only charged for being AWOL; 4) The applicant was discharged on 28 May 2004, Chapter 10, in lieu of trial by court- martial. His characterization of service was UOTHC. 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 applicant provided hardcopy records were also examined. d. The applicant asserts he experienced MST while in active service. He first engaged in the VA system of care due to homelessness and substance abuse in 2019. The applicant has been diagnosed with bipolar disorder, ADHD, and non-military related head injury. The applicant does not receive 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 mitigated his misconduct. Kurta Questions A. 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. B. Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing MST while on active service. C. Does the condition experience actually excuse or mitigate the discharge? Yes, the applicant reported MST is while on active service. The applicant was charged with multiple civilian offenses that would not be mitigated by MST. However, the applicant was only charged by the military with going AWOL. AWOL is an avoidant behavior, which can be a sequalae to MST. Per Liberal Consideration, his contention is sufficient for the board’s consideration. BOARD DISCUSSION: 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 MST claim and the review and conclusions of the ARBA Medical Advisor. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his AWOL possibly being mitigated by MST, but not the various instances of misconduct that occurred while he was AWOL. Based on a preponderance of the evidence, the Board determined 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, 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 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. 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 of that regulation provided, in pertinent part, 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 (DRBs) and Boards for Correction of Military/Naval Records (BCM/NRs), 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, 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. 6. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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) AR20220008181 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1