IN THE CASE OF: BOARD DATE: 25 April 2023 DOCKET NUMBER: AR20220009717 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions. Additionally, he requests an appearance before the Board either in person or via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) * Self-Authored Letter * Department of Veterans Affairs Statement in Support of Claim * Department of Veterans Affairs Letter * Medical Documents 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 issues/conditions related to the applicant’s request are post-traumatic stress disorder (PTSD), other mental health, sexual assault, and harassment. The applicant states he was given an UOTHC discharge during his active duty. He was sexually assaulted and was threatened with death after and during the assault. This caused psychological trauma which caused his absence from duty. This happened while he was on active duty in 1982 during basic training. He was assaulted by a group of military personnel at Fort Benning, GA. 3. The applicant enlisted in the Texas Army National Guard (TXARNG) on 25 February 1982 for six years. He entered active duty on 6 September 1982. He did not complete his initial training. 4. The applicant was absent without leave (AWOL) on 1 October 1982 and he was dropped from the rolls on 2 November 1982. 5. The applicant was present for duty on 5 March 1983. He was apprehended by civilian authorities at on 5 March 1983 and returned to military control. 6. Court-martial charges were preferred against the applicant on 8 March 1983 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with AWOL from on or about 1 October 1982 to on or about 5 March 1983. 7. A Medical Evaluation memorandum, signed on 8 March 1983 shows the applicant did not desire to undergo a medical examination in connection with his separation. 8. The applicant consulted with legal counsel on 10 March 1983 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a UOTHC discharge; and the procedures and rights that were available to him. a. After consulting with legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service for AWOL. He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He elected not to submit statements in his own behalf. 9. The applicant’s immediate commander recommended approval of his request for discharge for the good of the service on 11 March 1983. The commander opined that the applicant’s conduct had rendered him triable by court martial. Based on the applicant’s previous record, punishment could be expected to have a minimal rehabilitative effect. He believed a discharge at this time would be in the best interest of all concerned. There did not appear to be any reasonable ground to believe that the applicant is, or was, at the time of his misconduct, mentally defective, deranged, or abnormal and recommended the issuance of a discharge UOTHC. 10. The applicant’s chain of command recommended approval of the request for discharge for the good of the service and recommended discharge UOTHC. 11. The separation authority approved the applicant's request for discharge for the good of the service on 24 March 1983 and directed his reduction to the lowest enlisted grade with the issuance of an UOTHC discharge. 12. The applicant was discharged on 15 April 1983. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 10, for the good of the service - in lieu of court martial with his service characterized as under other than honorable conditions (Separation Code KFS/JFS and Reentry Code 3B/3C). He completed 2 months and 6 days net active service. He lost time from 1 October 1982 to 4 March 1983. 13. The applicant provides: a. A self-authored letter, dated 15 June 2022, which states during boot camp he and another guy wanted a drink and some cigarettes and they snuck off together. They flagged down a passing car with two white guys in the car who were dressed in Army fatigues. The guys told them they had cigarettes and beers and to get in the vehicle. They had on fatigues and the applicant believed he was in good company, the passenger turned and gave him a cigarette and a beer. They pulled off the road to a house and they all got out of the car and went in. (1) The applicant sat on the couch and a third guy grabbed him from behind with his arm around his neck with a knife, putting the knife to his head and stated, "Do you know what we do to , we kill " the applicant said, "I’m sorry don’t kill me". The applicant was told to close his eyes and not to open them for nothing. At the same time someone was pulling his pants down, they took one of his boots off and took his leg out of the pants. They bent him over into the couch and kept telling him not to open his eyes and to shut up or they would kill him. He felt something they were putting all over his behind like grease. They stuck something cold in his behind and they were going in and out of his behind, then he felt someone’s hands on his lower back and one of the guys penetrated him from behind. The applicant had to just take it. He was scared and crying and thought he was going to die. (2). When he was done, the applicant felt a towel wiping him off and he was told to get up and turn around and don’t open his eyes. He had tears coming from his eyes with pain in his behind, soreness from being penetrated by him. He put his leg back in his pants and his boot back on his foot. With his eyes still closed they guided him back to the vehicle and put him on the floor of the car. He was so scared he didn’t know what was going to happen next, they drove, and it didn’t seem long before the car stopped. They told him to get out and don’t open his eyes or he would die. After he heard the car pull off, he was scared to open his eyes, he waited seven to ten minutes before he opened his eyes, and they were gone. He was on the side of the road where they picked him up. (3). He went back to base where they realized he was gone. They had him for AWOL and he was punished for it. Until this day, he feels like a coward for not defending himself. He should have died that day. It would have been better than to live this nightmare for the rest of his life. Three times he attempted suicide and wrestles with the thought when his mind goes back to that day and that was what caused him to leave the Army the way he did. He couldn’t tell anybody. He wasn’t safe to tell anybody. b. A Department of Veterans Affairs Statement in Support of Claim states the applicant is a homeless mentally ill veteran who is trying to get stabilized in an SRO. He was recently discharged from in 2021 for suicidal ideation which is from his Military Sexual Trauma (MST). He was raped while in basic training. This cause him to get a less than honorable discharge. He was referred to MST program and to the veteran center for treatment for MST/depression. c. A Department of Veterans Affairs letter, dated 10 August 2022, notified the applicant his service from 6 September 1982 until 15 April 1983 was not honorable for VA purposes and he could not receive disability compensation. d. Medical documents to include progress notes. 14. 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. a. 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. b. 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. 15. MEDICAL REVIEW: a. The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions. He contends his misconduct was related to PTSD/MST. 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 Texas Army National Guard (TXARNG) on 25 February 1982 for six years. He entered active duty on 6 September 1982. He did not complete his initial training; 2) The applicant was absent without leave (AWOL) on 1 October 1982 and he was dropped from the rolls on 2 November 1982; 3) Court-martial charges were preferred against the applicant on 8 March 1983 for being AWOL from on or about 1 October 1982 to on or about 5 March 1983; 4) The applicant was discharged on 15 April 1983, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. c. The military electronic medical record, AHLTA, was not reviewed as it was not in use during the applicant’s time in service. Included in the applicant’s case file was a Standard Form 600 (Chronological Record of Medical Care) dated 21 September 1982, that shows the applicant was command referred for a mental status evaluation and was returned to duty with no diagnosis. Also included was a Medical Evaluation memorandum, dated 8 March 1983, that shows the applicant elected not to undergo a medical examination in connection with his separation. No other military BH-related documents were provided for review. d. A review of the VA electronic medical record, JLV, shows the applicant does not have a service-connected disability but does have a BH-related treatment history with the VA. Records suggest the applicant’s first engaged the VA for BH care on or about 11 June 2021, at the Jesse Brown VA. He was escorted by a friend to the ER with worsening depression, suicidal ideation, cannabis use, and significant alcohol use. The applicant reported a history of MST characterized sodomy, that reportedly occurred during his first week of BCT after he was tricked into getting into a car, abducted, and sexually assaulted by three white men in military uniforms. He stated he did not report the incident as he suspected the men where in the military. He reportedly went AWOL for fear he be confronted by them again. He reported poor sleep, low energy, difficulty concentrating, feelings of shame, worthlessness, hopelessness, daily intrusive thoughts of the MST since it happened. He also reported a history of two suicide attempts, one characterized by attempted hanging in jail and other characterized by an intent to jump in a lake but changed his mind at the last minute. The provider noted the applicant had all the symptoms of PTSD, however, his presentation was effected by significant impairment from severe depression with neurovegetative symptoms, and with contribution from alcohol. The applicant was voluntarily psychiatrically hospitalized with diagnoses of Depressive Disorder, Alcohol Use Disorder, and Trauma/Stress Disorder with a r/o of PTSD. The applicant was discharged on 14 June 2021; his discharge problem list was amended to include Cannabis Use Disorder. e. Encounter note dated 17 June 2022 shows the applicant presented as a walk-in at the Psychiatric Assessment Clinic (PAC) seeking referral for mental health treatment for depression, SI, PTSD, and Substance Use Disorder symptoms. He was informed that records showed he was not eligible for VA treatment and provided contact information to address the issues. Encounter notes dated 21 July 2022 and 31 August 2022 shows the applicant underwent a PTSD evaluation and was diagnosed with PTSD chronic, secondary to MST and scheduled for outpatient treatment. Encounter note dated, 22 September 2022 shows the applicant recounting his MST experiences and disclosing that following the experience he went AWOL but didn’t return home, due to shame, and instead has lived in the streets (abandoned building) and abusing alcohol and marijuana since 1983. The applicant was enrolled into the PTSD treatment program from 12 October 2022 to 5 November 2022 but chose to disenroll after 6 sessions due to increased symptom intensity. The provider explained to the applicant that what he was experiencing was a normal reaction to trauma treatment, however, the applicant chose the try the alternative methods of acupuncture and aroma therapy. JLV appears void of any further BH-related treatment subsequent the 5 November 2022 encounter. No civilian BH-related treatment records were provided for review. f. The applicant contends his misconduct was related to PTSD secondary to MST experienced while in BCT. A review of the records shows the applicant was diagnosed by a VA provider with PTSD/MST related to a reported sexual assault experienced during BCT, characterized by sodomy. The applicant reported the experience occurred during the first week of BCT after he was tricked into getting into a car, abducted, and sexually assaulted by three white men in military uniforms. He stated he did not report the incident as he suspected the men where in the military. He reportedly went AWOL for fear he would be confronted by the men again, and that he has since lived on the streets, because he was too ashamed to return home. The applicant has also been diagnosed with Substance Use Disorder, and MDD. Given there is an association between PTSD and avoidance of re-traumatization, there is a nexus between the applicant’s disorder and his misconduct. As such, the applicant misconduct characterized by AWOL is mitigated by his diagnosis of PTSD secondary to MST. g. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence in the records that the applicant had a condition or experience during his time in service that mitigated his misconduct Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant was diagnosed by VA providers with PTSD/MST, MDD, and Substance Use Disorder. (2) Did the condition exist or experience occur during military service? Yes. The experience reportedly occurred during BCT (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant contends his misconduct was related to PTSD secondary to MST experienced while in BCT. A review of the records shows the applicant was diagnosed by a VA provider with PTSD/MST related to a reported sexual assault experienced during BCT, characterized by sodomy. The applicant reported the experience occurred during the first week of BCT after he was tricked into getting into a car, abducted, and sexually assaulted by three white men in military uniforms. He stated he did not report the incident as he suspected the men where in the military. He reportedly went AWOL for fear he would be confronted by the men again, and that he has since lived on the streets, because he was too ashamed to return home. The applicant has also been diagnosed with Substance Use Disorder, and MDD. Given there is an association between PTSD and avoidance of re-traumatization, there is a nexus between the applicant’s disorder and his misconduct. As such, the applicant misconduct characterized by AWOL is mitigated by his diagnosis of PTSD secondary to MST. It is recommended the Board considered upgrade to HD/SA. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. 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. a. The applicant trial by a court-martial was warranted by the gravity of the offense charged (theft). His conviction and discharge were conducted in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. He was given a bad conduct discharge pursuant to an approved sentence of a court-martial. The appellate review was completed, and the affirmed sentence was ordered duly executed. All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process, and the rights of the applicant were fully protected. b. 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 sufficient evidence of in-service mitigating factors to overcome the misconduct. Based on a preponderance of evidence, the Board determined that the applicant’s service did not rise to the level required for an honorable characterization of service; however, a general discharge is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests. 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 reissuing him a DD Form 214 for the period ending 12 July 1978 showing his character of service as Under Honorable Conditions, General. * Separation Authority: No Change * Separation Code: No Change * Reentry Code: No Change * Narrative Reason for Separation: No Change 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. 5. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) 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. 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. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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) AR20220009717 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1