IN THE CASE OF: BOARD DATE: 19 July 2023 DOCKET NUMBER: AR20230000215 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge, and a personal appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored Letter * Medical note, dated 8 September 2022 * Authorization to Disclose Health Information Form, dated 8 September 2022 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, in effect, states that: a. It took him 19 years to realize that the harassment and shame that he felt was not his fault. Through counseling and being on two depression medications and talking with other Veterans, he realized that he was a victim, and he hopes the Board realizes it too. He was ashamed; but no more. b. He spent two years in Germany, he disagrees that he was absent without leave (AWOL) because he was granted emergency leave by the commander. He spent a year and a half doing recruiting detail in, that was not listed until he went to Fort Dix, NJ, and went through the discharge process. On his DD Form 149, the applicant indicates that sexual assault/harassment is related to his request. 3. On his DD Form 149, the applicant notes that sexual assault/harassment is related to his request as a contributing and mitigating factor in the circumstances that resulted in his separation. 4. On 20 August 1986, the applicant enlisted in the Regular Army for 3 years. Upon completion of training, he was awarded military occupational specialty 12B (Combat Engineer). 5. On 26 July 1988, the applicant was reported as AWOL and remained absent in a desertion status until he surrendered to military authorities on 27 March 1993. 6. On 31 March 1993, the applicant voluntarily declined a separation medical examination. 7. Court-martial charges were preferred against the applicant on 5 April 1993 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with going AWOL from on or about 26 July 1988, until on or about 27 March 1993. 8. The applicant consulted with legal counsel on 5 April 1993 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 bad conduct discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provisions 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 Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He declined to submit a statement in his own behalf. 9. His commander recommended approval of the applicant's request for discharge, and further recommended the issuance of an other than honorable discharge certificate. 10. Consistent with the chain of command’s recommendations, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial on 23 June 1993, and directed the issuance of an UOTHC Discharge Certificate, and his reduction to the lowest enlisted grade. 11. The applicant was discharged on 14 July 1993. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of court-martial. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He completed 2 years and 23 days of net active service this period with 1,766 days of lost time. 12. In the processing of this case, a Criminal Investigation Division Report of Investigation (ROI) was obtained on 14 February 2023. The ROI noted that the applicant was charged with desertion and surrendered to military authorities, on or about 31 March 1993. Additionally, it notes the applicant submitted a Chapter 10 discharge in lieu of special court-martial. 13. The applicant provides a medical note that shows he is taking Bupropion and Sertraline for depression and anxiety. He also provides an Authorization to Disclose Health Information Form, that authorizes his physician to disclose his psychiatric and therapy notes. 14. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 15. MEDICAL REVIEW: a. The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. He contends his misconduct was related to Sexual Assault/Harassment. 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 20 August 1986; 2) On 26 July 1988, the applicant was reported as AWOL and remained absent in a desertion status until he surrendered to military authorities on 27 March 1993; 3) Court-martial charges were preferred against the applicant on 5 April 1993 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with going AWOL from on or about 26 July 1988, until on or about 27 March 1993; 4) The applicant consulted with legal counsel on 5 April 1993. After receiving legal counsel, the applicant voluntarily requested discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial; 5) Consistent with the chain of command’s recommendations, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial on 23 June 1993, and directed the issuance of an UOTHC Discharge Certificate, and his reduction to the lowest enlisted grade; 6) He was discharged accordingly on 14 July 1993. c. VA electronic medical record (JLV), ROP, and casefiles were reviewed. The military electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant’s time in service. No hardcopy military BH records were provided for review. A review of JLV was void of any treatment history for the applicant and he does not have a service-connected disability. Included in the applicant’s casefile was a letter from, , dated 8 September 2022, stating the applicant was currently taking Bupropion and Sertraline for Depression and Anxiety. There was nothing in the letter that associates the applicant current diagnosis with military service. No other civilian BH records were provided for review. d. The applicant requests an upgrade of his UOTHC discharge to honorable. He contends his misconduct was related to Sexual Assault/Harassment. He provided no additional content or context. A review of the records was void of any BH diagnosis or treatment for the applicant during service. Included in the applicant’s casefile was a letter, dated 8 September 2022, showing the applicant currently taking medication for depression and anxiety. There is nothing in the letter that associated the applicant’s symptoms with military service and no treatment records were provided for review. Also included in the casefile was an Army CID report that showed the only records found pertaining to the applicant was related to him surrendering himself at Fort Dix, NJ after being AWOL. In absence of documentation supporting the applicant’s contention of Sexual Assault/Harassment, there is insufficient evidence to support that his misconduct was related Sexual Assault/Harassment. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence in the records that the applicant had a condition or experience during his time in service that mitigated his misconduct. However, he contends his misconduct was related to Sexual Assault/Harassment, and his contention is sufficient to warrant the Board’s consideration. (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant contends his Sexual Assault/Harassment. (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 requests an upgrade of his UOTHC discharge to honorable. He contends his misconduct was related to Sexual Assault/Harassment. He provided no additional content or context. A review of the records was void of any BH diagnosis or treatment for the applicant during service. Included in the applicant’s casefile was a letter, dated 8 September 2022, showing the applicant currently taking medication for depression and anxiety. There is nothing in the letter that associated the applicant’s symptoms with military service and no treatment records were provided for review. Also included in the casefile was an Army CID report that showed the only records found pertaining to the applicant was related to him surrendering himself at Fort Dix, NJ after being AWOL. In absence of documentation supporting the applicant’s contention of Sexual Assault/Harassment, there is insufficient evidence to support that his misconduct was related Sexual Assault/Harassment. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding insufficient evidence in the records that the applicant had a condition or experience during his time in service that mitigated his misconduct. The Board determined there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. The Board agreed there is insufficient evidence of in-service mitigation to overcome the misconduct. Based on the evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. Therefore, relief was denied. 2. 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. 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 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, 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. a. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. 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. c. Paragraph 2-15a governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR. The applicant must provide new relevant evidence or argument that was not considered at the time of the ABCMR's prior consideration. 4. 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 provided 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. 5. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Navy Records (BCM/NR), 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. 6. 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, traumatic brain injury, 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 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. 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, 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) AR20230000215 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1