IN THE CASE OF: BOARD DATE: 11 April 2023 DOCKET NUMBER: AR20220008278 APPLICANT REQUESTS: change his Narrative Reason for Separation from “Misconduct” to “Disability” (i.e., medically discharged) and change his Separation Code. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge from Active Duty), 17 July 1989 * Letter from Applicant, undated 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, in effect, he is requesting that his discharge be changed to a medical discharge due to post-traumatic stress disorder (PTSD). PTSD did not exist back in 1989. He was diagnosed with PTSD due to the trauma he went through in 1988 during his active service. He was falsely accused of raping a young lady, and she later admitted the false claim but the damage to his mental health and military career was already damaged. Prior to this event his records and service were exceptional. His service deteriorated rapidly once the event took place. 3. The applicant enlisted in the Regular Army on 7 June 1982. The highest grade he held was specialist four (SP4)/E-4. 4. The applicant was counseled for the following: * 17 August 1987 - missing two mandatory formations * 20 September 1987 - failure to wear the proper uniform to an awards ceremony * 16 October 1987 - reporting late to a scheduled post detail * 7 December 1987 - failure to stop and render salute to the flag during retreat * 5 January 1988 - failure to report * 1 March 1988 - failure to report 5. A U.S. Army Criminal Investigation Division (USACID) Report of Investigation, dated 22 February 1988, shows: a. SPC rendered a sworn written statement to CID stating that the applicant accosted her and attempted to force her to perform fellatio on him, a statement she knew to be false. Further investigation disclosed that while both were on duty, SPC willingly performed fellatio on the applicant. b. The investigation was discussed with Trial Counsel, Robinson Barracks Staff Judge Advocate Office. Trial Counsel opined that there was sufficient evidence to believe that the applicant committed the offense of false swearing and that both SPC and the applicant engaged in consensual sodomy. The investigation met legal sufficiency for prosecution or administrative action against SPC and the applicant. 6. On 17 March 1988, the applicant accepted non-judicial punishment (NJP) under field grade Article 15, Uniform Code of Military Justice (UCMJ) for the following misconduct: * wrongfully and unlawfully make under oath a false statement, on or about 17 February 1988, a violation of Article 134, UCMJ. * Attempt to commit consensual sodomy (fellatio) with SPC on or about 13 February 1988, a violation of Article 80, UCMJ 7. His punishment included reduction to private first class/E-3, forfeiture of $300.00 pay per month for 2 months (suspended for 4 months), and 30 days of extra duty. 8. On 29 March 1988, the applicant was counseled for failing to be at his appointed place of duty. 9. On 1 June 1988, the Family Advocacy Case Management Team (FACMT) received a report of spouse abuse involving the applicant and his spouse. The report alleged that an argument resulted in physical altercation, in which the applicant's spouse sustained multiple bruises to the facial area, due to being beaten with a closed fist by the applicant. The applicant's spouse was treated at the emergency room and the applicant's unit was notified. The applicant's spouse refused to press charges but asked for early return of dependents (EROD). The FACMT conducted an investigation and determined it to be substantiated. The FACMT made the following recommendations: a. Applicant be command directed to report to 5th General Hospital, Social Work Service for treatment as soon as possible and subsequently as scheduled. b. Unit support family member wife, as she was socially isolated (no transportation), due to place of residence, and Soldier's restriction to barracks. c. EROD (Early Return of Dependents) for family member wife and child d. Soldier be referred to CCC, Community Counseling Center, (ETOH/ethyl alcohol) e. Follow up with Social Work Service. 10. On 30 June 1988, the applicant was command referred and enrolled in the Drug and Alcohol Control Program, as a result of the physical altercation with his spouse. 11. On 12 July 1988, the applicant received NJP under Article 15, for unlawfully striking his wife in the facial area with his fists, a violation of Article 128, UCMJ. His punishment included 7 days of extra duty. 12. The applicant was counseled for the following: * 19 October 1988 - failure to pay rent * 29 October 1988 - dishonored checks 13. DA Form 4126-R (Bar to Reenlistment Certificate), dated 23 November 1988, shows the applicant was barred from reenlistment. The applicant initialed he was furnished with a copy of the bar to reenlistment, he was counseled and advised of the basis for the action. The applicant submitted a statement of his own behalf and stated the following: a. He completed the Anger Management Program for Spouse Abusers. b. The Field Grade Article 15 for false swearing was brought against him by a different command and placed in his restricted fiche, the commander should not have had knowledge of this, and he brought this to his attention. c. He received numerous counseling for the same check. He completed the Army Community Services (ACS) checkbook class and he and his wife enrolled in the ACS debt liquidation program. d. Poor money management and unexpected costs were the cause of his failure to keep his rent payment up to date. He went to housing and ACS and received assistance in getting the problem solved. e. He stopped payment on some checks because of a bad car deal between him and his supervisor. f. He attended CCC for counseling. The counselor whom he saw stated that if he did not drink, then she could not help him. After almost 7 years of Active Duty, he has never had a DUI, DWI, or any alcohol related incidences. He was recommended because he lost control with his wife and slapped her. His counselor thinks too much stress and anger from his job caused the incident. g. His failure to be at the appointed place of duty was the lack of attention of his supervisor to recall the work schedule. h. After reporting to his commander and first sergeant, he did not receive cooperation from them. He was not given time to adjust to his new environment after being attached to another unit. He feels the only way captain (CPT) could have heard and received information about his previous Article 15, which was in his restricted file, was illegally. He became a target for harassment and racial discrimination by CPT. He served his country for six and half years and never received a bad counseling for job performance or his work. I. He noticed that received a great deal of counseling by his commander, but never received help, only constant harassment in the form of counseling statements. Not once did the commander or first sergeant sat down and talk to him one on one or see him in his work environment. 14. On 13 December 1988, the commander received notification of another indebtedness by the applicant for failure to pay rent and utilities on his apartment. 15. On 15 December 1988, the applicant received a counseling for failure to pay his rent for the second time in three months. The counseling stated that the applicant received an Army Emergency Relief (AER) loan to assist him with his bills after the first overdue rent notice. 16. On 14 June 1989, the applicant's immediate commander notified the applicant of his intent to initiate separation actions against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, by reason of a pattern of misconduct – pattern of misconduct. The commander listed the following reasons for the proposed action: misconduct and failure to pay just debts. The commander informed the applicant he was recommending he receive a general, under honorable conditions discharge and explained his rights. 17. A memorandum dated 5 June 1989, shows the applicant was notified of the commander's intent to initiate discharge action against him, but the applicant refused to sign the letter of notification. 18. On 19 June 1989, the applicant acknowledged receipt of the notification and after being advised by his consulting counsel of the basis for the contemplated action to separate him for misconduct and failure to pay just debts under AR 635-200, chapter 14, and its effects; of the rights available to him; and the effect of any action he took in waiving his rights. He understood that if he had less than 6 years of total active and Reserve military service at the time of separation and was being considered for separation for reason of misconduct under AR 635-200, Chapter 14, he was not entitled to have his case heard by an administrative separation board unless he was being considered for a discharge under other than honorable conditions. a. He waived personal appearance and consideration of his case by an administrative separation Board. b. He understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further understood that, if he received a discharge certificate/character of service which was less than honorable, he may make application to the Army Discharge Review Board (ARBA) or the Army Board for Correction of Military Records (ABCMR) for upgrading; however, an act of consideration by either board did not imply that his discharge will be upgraded. 19. On 14 June 1989, the applicant's immediate commander recommended approval of the separation under the provisions of AR 635-200, paragraph 14-12b, a pattern of misconduct, with a general, under honorable conditions discharge. The intermediate commander echoed the immediate commander's recommendation. 20. The applicant underwent a mental status evaluation on 22 June 1989 for the purpose of separation. No significant mental illness was noted. 21. On 28 June 1989, the separation authority approved the discharge and directed the applicant be issued an under honorable conditions (general) discharge. 22. The applicant was discharged on 17 July 1989. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, chapter 14, by reason of misconduct - pattern of misconduct, in the rank/grade of private first class (PFC)/E-3, and his service was characterized as under honorable conditions (general). He completed 7 years, 10 months, and 11 days of net active service during the covered period. His DD Form 214 shows he was awarded the Army Service Ribbon, the Overseas Service Ribbon, Marksmanship Qualification Badge with M16 rifle bar, Army Achievement Medal with 1st oak leaf cluster, Good Conduct Medal, and the Hand Grenade (expert). His DD Form 214 contains the following entries: * item 26 (Separation Code) - JKM * item 27 (Reentry Code) - RE-3 23. On 21 October 2022, the Director, Case Management Division, ARBA, sent a letter to the applicant requesting a copy of his DD 214 and medical documents that support his mental health issues (PTSD). The applicant's case was placed on hold for a period of 30 days. 24. The applicant provides a letter, undated, which states he enclosed a copy of his DD Form 214. The letter states "I am not good with paperwork currently, being homeless has its short comings. For my PTSD I am giving you my username and password (myhealthyvet)". 25. Regulatory guidance states when an individual is discharged under the provisions of Chapter 14, AR 635-200 for misconduct, an under other than honorable conditions characterization of service is normally appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 26. There is no indication the applicant applied to the Army Discharge Review Board for review of his discharge processing within that Board’s 15-year statute of limitations 27. MEDICAL REVIEW: a. Background: The applicant is requesting that his Narrative Reason for Separation change from “Misconduct” to “Disability” (i.e., medically discharged) and change his Separation Code. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a brief summary of information pertinent to this advisory: * The applicant enlisted in the Regular Army on 7 June 1982. * He received a field grade article 15 on 6 April 1988 for “False Swearing and Attempted Consensual Sodomy” and a Summary Article 15 on 12 July 1988 for “Unlawfully striking wife.” In addition, from August 1987 to April 1989, he was counseled at least 13 other times for failure to reports, improper uniform, failure to render honors to the flag, late to details, failure to participate in community counseling program, failure to pay rent and dishonored checks. He was barred from reenlistment 14 December 1988. After the second notice to command on the applicant being late on his rent, and the second counseling by command for him in debt, separation was initiated for “misconduct and failure to pay just debts.” * The applicant was discharged under AR 635-200 Chapter 14, UOTHC, with a discharge date of 17 July 1989, by reason of misconduct-pattern of misconduct. * The applicant asserts that he experienced PTSD secondary to the trauma of being falsely accused of rape, and that he should receive a medical discharge. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, the applicants ABCMR Record of Proceedings (ROP), the applicant’s separation military documentation, and all other supporting documents. The VA electronic medical record and DoD health record available for review through Joint Longitudinal View (JLV) and AHLTA were also reviewed, however AHLTA did not contain any data (service predated electronic health records). No additional hardcopy military treatment records were provided for review. Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant has petitioned for consideration of medical discharge, attesting that he experienced PTSD secondary to being falsely accused of rape in 1988. There is no indication during his time of service that he experienced any mental concerns, nor that he received any treatment or diagnoses. The applicant has engaged in care at the VA since leaving service and is service connected for medical conditions (50% total: 40 % for degenerative arthritis of the spine, 10% for paralysis of sciatic nerve). He has been diagnosed with a myriad of psychiatric conditions since his time in service, to include schizophrenia, depression, bipolar disorder, cocaine dependence, cannabis dependence, antisocial personality disorder, paranoid personality disorder, PTSD, and schizoaffective disorder bipolar type. However, he does not hold a service connection for any psychiatric conditions. No compensation and pension evaluations were provided, nor found in JLV, for review. A mental health consult note from 10 September 2010 does indicate a history of trauma, to include childhood abuse and the events of him being falsely accused in 1988. But again, there is no indication that these events have been found to have caused a service-connected disability. e. Of note, the applicant also attests that his performance suffered after the allegation of rape. However, his service records show a pattern of negative counseling’s prior to the allegation as well as continued problematic behavior after. Though there is insufficient evidence to support the applicant had a condition that mitigated his discharge, liberal consideration guidance would suggest his contention is sufficient to warrant the board’s consideration of an upgrade in discharge status, though this was not the specific nature of his request. f. Based on the available information, it is the opinion of this Agency Behavioral Health Advisor that there is insufficient evidence to support a referral to IDES process at this time. Medical fitness is presumed during his time in service, given his DA 3822 Mental Status Exam indicated no psychiatric conditions at time of administrative separation and the applicant was found to meet medical/psychiatric requirements per AR 40-501. In addition, there is no indication the applicant has provided any additional medical or psychiatric records in support his claimed diagnoses during his time in service, hence there is no evidence of a condition justifying an MEB. 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’s record does not reflect any behavioral health diagnosis during his time in service. However, the applicant asserts PTSD and has since received a PTSD diagnosis. (2) Did the condition exist or experience occur during military service? Yes, applicant asserts PTSD while in service, secondary to being falsely accused of rape. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial: There is currently insufficient evidence to support a medical discharge. There is no indication in his service records, or available medical records, that the applicant was ever diagnosed with a psychiatric condition that at the time of service was unfitting per AR 40-501, and/or that he was ever on a psychiatric profile, and/or that his case should have resulted in processing by an MEB/PEB. A subsequent diagnosis of PTSD through the VA is not indicative of a misdiagnosis or other injustice at the time of service, as psychiatric diagnoses can evolve over time. In addition, none of his psychiatric diagnoses have been service connected by the VA. g. The applicant did not request consideration for an upgrade in discharge characterization based on mitigating diagnoses/experiences, however, this advisor will briefly give comment. Failure to report and similar infractions could be considered an avoidance behavior that can be associated with the natural history and sequelae of trauma and other mental health disorders. That said, PTSD would not typically impair one’s ability to distinguish right from wrong and adhere to the right. It is the medical advisor’s position that behaviors such as domestic assault, writing bad checks, not paying rent, and false swearing would not be mitigated by applicant’s claimed condition, even if presumed to have been relevant at the time of misconduct/discharge. As suggested in the Kurta memo, the premeditated misconduct outweighs relief offered under Liberal Consideration guidance. BOARD DISCUSSION: The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was discharged from active duty due to Misconduct – Pattern of Misconduct. He was assigned Separation Code JKM. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding no indication in his service records, or available medical records, he was ever diagnosed with a psychiatric condition that at the time of service was unfitting per AR 40-501, and/or that he was ever on a psychiatric profile, and/or that his case should have resulted in processing by an MEB/PEB. A subsequent diagnosis of PTSD through the VA is not indicative of a misdiagnosis or other injustice at the time of service, as psychiatric diagnoses can evolve over time. In addition, none of his psychiatric diagnoses have been service connected by the VA. 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. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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 used for 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, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. 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 considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 3. Title 10, United States Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and AR 635-40 (Disability Evaluation for Retention, Retirement or Separation). Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness), chapter 3. 4. AR 40-501 provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 5. AR 635-40 establishes the PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. It provides that a Medical Evaluation Board is convened to document a Soldier's medical status and duty limitations in so far as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501. a. Paragraph 2-1, the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. b. Paragraph 2-2, a member being processed for separation for reasons other than physical disability is presumed fit for duty as shown by his continued performance of duty. Such a member should not be referred to a Physical Evaluation Board unless his physical defects raise substantial doubt that he would be fit were he to continue the duties of his office, grade, rank, or rating. 6. AR 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, provided that enlisted Soldiers separated under the provisions of AR 635-200, paragraph 14-12b for Misconduct-Pattern of Misconduct would receive a separation code of "JKM." 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; TBI; sexual assault; sexual harassment. Boards were directed 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 that misconduct which 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 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. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. 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. 9. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220008278 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1