IN THE CASE OF: 
 
  BOARD DATE: 31 August 2023 
 
  DOCKET NUMBER: AR20230000274 
 
 
APPLICANT REQUESTS:  reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge. Additionally, he requests a personal appearance before the Board. 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record) 

• Character Reference Letters (2) 

• Self-authored Letter 

• Digital image of Soldiers 

• DD Form 214 (Certificate of Release or Discharge from Active Duty) 


 
 
FACTS: 
 
1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090008083 on 8 October 2009. 
 
2.  In a new argument, the applicant states: 
 
a.  Growing up, he was a somewhat happy kid, although he hid what was happening to him. He acted like nothing was wrong. Going into the military after high school was the highlight of his life, he was ready to start a new life and a new beginning. 
 
b.  He got stationed at Camp Hialeah Pusan, South Korea, after bootcamp. He was living his dream, then it all came crashing down when he was sexually assaulted by his roommate. He reported it to his squad leader and platoon sergeant, and they told him they would look into it. Nothing ever happened and he never talked about it for years. He could not fathom or understand what happened to him. As time went on, he began to drink more to forget about the humiliation of what happened He was never the same. 
 
c.  Today he still suffers from anxiety and depression, along with alcoholism. He has attempted suicide and has been hospitalized at a Veterans Affairs psychiatric ward. It was the responsibility of the Army to protect him. He is remorseful due to his actions. 
 
3.  On his DD Form 149, the applicant notes sexual assault/harassment as contributing and mitigating factors in the circumstances that resulted in his separation. 
 
4.  The applicant enlisted in the Regular Army on 10 September 1987. Upon completion of training, he was awarded military occupational specialty 95B (Military Police). He reenlisted on 22 May 1990, 18 December 1991, and again on 19 April 1993. The highest grade he attained was E-5. 
 
5.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, the previous ABCMR  Record of Proceedings indicates: 
 
a.  On 25 June 1993, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for willfully and wrongfully exposing his penis in an indecent manner to public view. 
 
b.  On 9 September 1993, a board of officers convened to determine whether the applicant should be separated due to misconduct. The board of officers found that the preponderance of evidence shows that the applicant did: 
 
• on or about 27 May 1993, indecently expose his penis to public view while sitting in his vehicle at the Youth Service Center at Fort Jackson, SC 

• on or about 13 March 1992, indecently expose his penis to public view while sitting in his vehicle at the Fort Jackson Commissary parking lot  

• in December 1989, indecently expose his penis to public view while in his bedroom at his government quarters with the door open  

• on or about 16 September 1990, made several obscene phone calls in which he repeatedly used indecent language 

• on or about 10 July 1993, destroy government property in the Fort Jackson housing area 


 
 c.  The board of officers recommended that the applicant be discharged for misconduct - commission of a serious offense and that he be issued an UOTHC Discharge Certificate. 
 
6.  Consistent with the board’s findings and recommendation, the separation authority approved the recommended discharge on 28 September 1993. He directed the applicant’s separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, for commission of a serious offense. He 
further directed the applicant’s reduction to the lowest enlisted grade with a UOTHC characterization of service. 
 
7.  The applicant was discharged on 15 October 1993, in the rank of Private/E-1. He was credited with 6 years, 1 month, and 6 days of net active service this period. His DD Form 214 contains the following entries in: 
 
• item 24 (Character of Service) – UOTHC 

• item 25 (Separation Authority) – AR [Army Regulation] 635-200, Para 14-12c 

• item 26 (Separation Code) – JKQ 

• item 27 (Reentry Code) – 3 

• item 28 (Narrative Reason for Separation) – Misconduct 


 
Additionally, his DD Form 214 shows he was awarded or authorized the: 
 
• Army Achievement Medal (2nd Award) 

• Good Conduct Medal 

• National Defense Service Medal 

• Meritorious Unit Commendation (Navy-Marine Corps) 

• Noncommissioned Officers Professional Development Ribbon 

• Army Service Ribbon 

• Overseas Service Ribbon with Numeral 3 

• Army Superior Unit Award 

• Expert Marksmanship Badge (Grenade) 

• Expert Marksmanship Badge (Pistol, 9MM) 

• Sharpshooter Marksmanship Qualification Badge (Rifle M-16) 

• Sharpshooter Marksmanship Qualification Badge (Pistol, 45 Caliber) 

• Driver and Mechanic Badge 


 
8.  The applicant petitioned the ABCMR requesting upgrade of his UOTHC discharge. On 8 October 2009, the Board voted to deny relief and determined that the evidence presented did not demonstrate the existence of a probable error or injustice. 
 
9.  The applicant provides two character reference letters that collectively attest to the applicant's mental state following his discharge from the service. He is described as being reserved, withdrawn, and anxious. 
 
10.  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. 
 
 
11.  MEDICAL REVIEW: 
 
    a.  The applicant is applying to the ABCMR requesting reconsideration of his previous request for an upgrade of his under other than honorable conditions (UOTHC) discharge. He contends he experienced military sexual trauma (MST) that mitigates 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 10 September 1987; 2) The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, the previous ABCMR record provided information on the events of his separation; 3) On 25 June 1993, the applicant accepted nonjudicial punishment (NJP) for exposing his penis in an indecent manner to public view; 4) On 9 September 1993, a board of officers convened and found that the applicant did on three occasions between 1989-1993 indecently expose his penis in public view; in 1990, make several obscene phone calls using indecent language; and in 1993, destroy government property in the housing area. The applicant was recommended to be discharged; 5) The applicant was discharged on 15 October 1993, Chapter 14-12c, misconduct. His character of service was UOTHC; 6) The applicant applied to the ABCMR, and on 8 October 2009, his case was denied. 
    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) was also reviewed. 
    d.  The applicant asserts he experienced MST, which mitigates his misconduct. There is insufficient evidence the applicant reported experiencing MST on active service. However, there is evidence in JLV that he reported experiencing MST to the VA and is involved in behavioral health treatment for PTSD related MST and previous childhood trauma since April 2022. The applicant has also been diagnosed and treated for depression related to his experience of MST and earlier childhood trauma by the VA. The applicant does not receive any service-connected disability for any mental health or physical condition.  
    e.  Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct.  
Kurta Questions 
    (1)  Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends that he experienced MST while on active service that contributed to his misconduct. He did report experiencing MST to the VA 
and has been diagnosed and treated for PTSD and depression related to this experience since April 2022. 
    (2)  Did the condition exist or experience occur during military service?  Yes, the applicant contends that he experienced MST while on active service that contributed to his misconduct. He did report experiencing MST to the VA and has been diagnosed and treated for PTSD and depression related to this experience since April 2022. 
    (3)  Does the condition or experience actually excuse or mitigate the discharge? No, the applicant contends he was exposed to MST, while on active service. He has also been diagnosed and treated for PTSD and depression related to his experience of childhood trauma and MST. However, there is no nexus between MST and the resultant mental health conditions of the applicant and his misconduct. The applicant was found guilty of repeatedly exposing his penis in public areas, making obscene phone calls using indecent language, and destroying government property.  This type of misconduct is not part of the natural history or sequelae of MST or the applicant’s mental health conditions. MST and the applicant’s mental health conditions do not affect one’s ability to distinguish right from wrong and act in accordance with the right. Nonetheless, in accordance with the liberal consideration memo, the applicant’s contention of MST and/or mental health condition alone is sufficient to be considered by the board in reaching its final determination.  
 
BOARD DISCUSSION: 
 
1.  The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 
 
2.  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 PTSD claim and the review and conclusions of the ARBA BH 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 misconduct not being mitigated by PTSD.  Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust.   
 
3.  The Board concurred with the corrections described in Administrative Note(s) below. 
 
BOARD VOTE: 
 
Mbr 1 Mbr 2 Mbr 3 
 
: : : GRANT FULL RELIEF 
 
xx: xx: xx: GRANT PARTIAL RELIEF 
 
: : : GRANT FORMAL HEARING 
 
: : : DENY APPLICATION 
 
 
BOARD DETERMINATION/RECOMMENDATION: 
 
1.  The Board determined the evidence presented is sufficient to warrant partial amendment of the decision of the ABCMR set forth in Docket Number AR20090008083 on 8 October 2009.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by making the corrections described in Administrative Note(s) below. 
 
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the applicant's character of service. 

  9/12/2023

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. 
 
 
  
ADMINISTRATIVE NOTE(S): 
 
A review of the applicant's record shows his DD Form 214, for the period ending 15 October 1993, is missing important entries that may affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries in item 18 (Remarks):  
 
• SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE 

• CONTINUOUS HONORABLE SERVICE FROM 870910 UNTIL 930418 


 
 
REFERENCES: 
 
1.  Section 1556 of Title 10, U.S. 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. 
 
2.  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. 
 
3.  Army Regulation 635-8 (Separation Processing and Documents) provides: for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable, enter Continuous Honorable Active Service From" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). Then, enter the specific periods of reenlistment as prescribed above. 
 
4.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 
 
 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 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. It states that action will be initiated to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) applied to commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense. First time offenders below the grade of sergeant, and with less than 3 years of total military service, may be processed for separation as 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 under other than honorable conditions 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//