IN THE CASE OF: BOARD DATE: 2 May 2023 DOCKET NUMBER: AR20220009125 APPLICANT REQUESTS: his separation be corrected, in effect, an upgrade of his discharge to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Letters (two) 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 was discharged and eventually diagnosed with post- traumatic stress disorder (PTSD) and given a service connected disability rating. He requests is discharge be corrected as a result. The issues/conditions related to his request are PTSD and military sexual assault (MST). 3. The applicant enlisted in the Regular Army on 3 January 1985. He did not complete his advanced individual training and was not awarded a military occupational specialty. 4. A Report of Mental Status Evaluation, dated 5 April 1985, shows the applicant was cleared psychiatrically for further administration action deemed appropriate by command. He was on medication for depression secondary to stress in his personal life. The examining psychiatrist recommended expeditious separation under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), Chapter 11, Training Discharge Program. 5. A Report of Psychiatric Evaluation, dated 9 April 1985, shows the applicant was evaluated on 8 April 1985 at the request of his command. The applicant had been evaluated at the Community Mental Health Service several times for symptoms of depression. Although he was on medication, he still had difficulty with insomnia, decreased energy and the stress of everyday military life. After careful evaluation, the examining psychiatrist diagnosed the applicant with inadequate personality disorder. There were no mental or physical defects sufficient to warrant separation through medical channels. The applicant was psychiatrically cleared for further administrative action deemed appropriate by command. 6. A Statement of Medical Examination and Duty Status, dated 10 April 1985, shows the applicant was admitted to Kenner Army Hospital, Fort Lee, VA, following overdose/suicide gesture/depression. He was on medication for high blood pressure and stated he took 13 of those pills to relieve pain of severe headache on or about 10 April 1985. Details of the accident show on or about 10 April 1985 the applicant was excused from physical training formation and returned to his room. He proceeded to lock himself in his room and ingest an unknown quantity of a medication prescribed for migraine headaches and high blood pressure. The company first sergeant used his master key and was able to enter the room, but the applicant had fled through the window and lowered himself to the ground. Military Police officers located the applicant behind the chapel and took him immediately to the emergency room at Kenner Army Hospital. 7. The Medical Record (Statement of Patient’s Treatment from 10 April to 9 May 1985 shows the applicant was taken to the ER by the MP’s and seen on or about 10 April 1985. The applicant complained of vomiting and a headache. He allegedly ingested approximately 13-19 potassium tablets and 23 hydrochlorothiazide (HCTX) tablets previously prescribed to him for hypertension. His diagnoses were overdose and labile essential hypertension. 8. A Report of Investigation Line of Duty (LOD) and Misconduct Status, dated 17 June 1985 shows the attempted suicide was found to be in the LOD. 9. The applicant's separation processing documents are not available for review. However, his DD Form 214 shows he was discharged on 22 May 1985, under the provisions of Army Regulation 635-200, Chapter 5, for personality disorder. His service was uncharacterized as he was in an entry level status. He completed 4 months and 20 days of net active service. 10. Soldiers are considered to be in an entry-level status when they are within their first 180 days of active-duty service. The evidence of record shows the applicant was in an entry-level status at the time of his separation. An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service. It simply means the Soldier was not in the Army long enough for his or her character of service to be rated as honorable or otherwise. 11. The applicant provides: * VA letter dated 28 January 2022, which shows a temporary total rating was granted due to hospital treatment of more than 21 days for service-connected PTSD. He was entitled to individual unemployability effective 27 July 2015 * VA letter dated 19 February 2022, shows his character of service as honorable and a 70% service-connected evaluation 12. On 17 January 2023, in the processing of this case the U.S. Army Criminal Investigation Division, searched their criminal file indexes, which revealed no Criminal Investigative and/or Military Police Reports pertaining to the applicant. 13. 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. 14. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting his separation be corrected. In effect, he is requesting an upgrade of his discharge to honorable. He contends he experienced military sexual trauma (MST) and resultant PTSD that mitigated his discharge. 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 3 January 1985; 2) The applicant's separation processing documents are not available for review. He was discharged on 22 May 1985, Chapter 5- personality disorder. His service was uncharacterized. b. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional civilian treatment records were provided for review. The applicant indicated on his application that he experienced MST and resultant PTSD. He was seen by behavioral health while on active service. A Report of Mental Status Evaluation, dated 5 April 1985, stated the applicant was experiencing depression and was being treated with psychiatric medication. He was cleared from a psychiatric perspective for administrative action and was recommended for administrative separation. The applicant was reevaluated at the request of command on 8 April 1985 by behavioral health for symptoms of depression. The applicant was diagnosed with a personality disorder, and he was again recommended for an administrative separation. On 10 April 1985, there is evidence the applicant attempted suicide by overdosing on prescribed medication. A review of JLV provided evidence the applicant has been actively engaged in treatment for MST and PTSD through the VA system of care since 2015. Lastly, the applicant has been found to be 70% disabled for service-connected PTSD since 15 July 2015. c. 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 discharge. d. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing symptoms of PTSD related to his MST that contributed to his discharge from the military. The applicant was diagnosed with depression and a personality disorder while on active service. (2) Did the condition exist or experience occur during military service? Yes, there is sufficient evidence the applicant reported behavioral health symptoms consistent with PTSD while on active service, and the applicant has reported being exposed to MST while on active service. Lastly, the applicant receives service-connect disability for PTSD related to his report of MST. (3) Does the condition experience actually excuse or mitigate the discharge? Yes, there is sufficient evidence the applicant was exposed to MST and experienced resultant behavioral health symptoms while on active service. He was diagnosed with depression and a personality disorder while on active service, but later he was diagnosed with PTSD. It is reasonable to surmise that the applicant would have completed his initial training and his commitment to the Army if not exposed to MST. Therefore, it is recommended his discharged be upgraded. Lastly, it is also recommended the narrative reason for separation be amended to Secretarial Authority. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant’s 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's separation processing documents are not available for review. However, his DD Form 214 shows he was discharged under the provisions of AR 635-200, Chapter 5, for personality disorder after having completed 4 months and 20 days of active service. His service was uncharacterized as he was in an entry level status. 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 advising official finding sufficient evidence of in-service mitigating factors to overcome the misconduct. There is sufficient evidence the applicant was exposed to MST and experienced resultant behavioral health symptoms while on active service and that it is reasonable to surmise that he would have completed his initial training and his commitment to the Army if not exposed to MST. Therefore, the Board voted to upgrade his discharge and change his narrative reason for separation to Secretarial Authority. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing the applicant a new DD Form 214 for the period ending 22 May 1985 showing in: * item 24 (Characterization of Service): Honorable * item 25 (Separation Authority): Army Regulation 635-200, paragraph 5-3 * item 26 (Separation Code): JFF * item 27 (Reentry Code): 1 * item 28 (Narrative Reason for Separation): Secretarial Authority 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 policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. 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 5-13 provides that a Soldier may be separated because of personality disorder when the condition is a deeply ingrained maladaptive pattern of behavior of long duration that interferes with the Soldier’s ability to perform duty. The diagnosis of personality disorder must have been established by a physician trained in psychiatry and psychiatric diagnosis. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and BCM/NRs, 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 under other than honorable conditions (UOTHC) and who have been diagnosed with post-traumatic stress disorder (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 DRBs and Service BCM/NRs on 25 July 2018, 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 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) AR20220009125 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1