IN THE CASE OF: BOARD DATE: 12 July 2023 DOCKET NUMBER: AR20230000331 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge, and to appear in person before the Board via telephone/video. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from Headquarters, California Army National Guard (CAARNG), Sacramento, CA * Email message from a staff member of the Case Management Division, Army Review Boards Agency (ARBA) * Character Reference letters (four) * National Guard Bureau (NGB) Special Orders Number 230 AR, dated 7 September 2006 * NGB Orders 250-0, dated 7 September 2006 * NGB Form 22E (Report of Separation and Record of Service) effective 11 May 2006 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), 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 October 2004, just prior to deployment, he was drugged and raped by a male servicemember. He deployed in a damaged mental state and was repeatedly denied requests for psychiatric attention. He should not have deployed as a sexual assault victim who was experiencing post-traumatic stress disorder (PTSD), depression, and suicidal ideation. His characterization of service was changed without his signature. 3. On 17 January 2002, the applicant enlisted into the CAARNG. On 14 November 2003, he was relieved from attachment to attend Officer Candidate School. He was honorably discharged on 26 March 2004 for the purpose of accepting an appointment as a commissioned officer. 4. On 27 March 2004, he was appointed as a second lieutenant (2LT)/O-1 in the Army National Guard and ordered to active duty in support of Operation Enduring Freedom. 5. On 17 June 2005, an administrative flag was initiated on the applicant to suspend all favorable personnel actions due to adverse action. 6. General Court-Martial (GCM) Number 4 issued by Headquarters, 21st Theater Support Command on 17 May 2006, show: a. The applicant was arraigned at Mannheim, Germany, on the following offenses at a GCM convened by the Commander, 21st Theater Support Command: * Charge I – Article 107 – Specification: on or about 12 June 2005, with intent to deceive, make a false official statement * Charge II – Article 133 – Specification: on or about 7 June 2005, wrongfully and dishonorably, take nude pictures of Sergeant (SGT) SLB, without her knowledge and permission while she was unconscious in her bed * Charge III – Article 134 – * Specification 1: on or about 7 June 2005, wrongfully had sexual intercourse with SGT , a woman not his wife * Specification 2: on or between 7 June 2005 and 9 June 2005, knowingly fraternized with SGT b. The proceedings were terminated on 15 February 2006 because the applicant requested discharge in lieu of trial by court-martial pursuant to the provisions of Chapter 3, Army Regulation 600-8-24 (Officer Transfers and Discharges), which was approved by the Department of the Army on 11 April 2006 with issuance of an UOTHC discharge. Accordingly, the charges and their specifications were dismissed. 7. The specific facts and circumstances pertaining to the applicant's separation are not present in his available record. However, a review of the ARBA database shows on 31 March 2006, a Department of the Army Ad Hoc Military Review Board reviewed the applicant's voluntary resignation in lieu of elimination based on violation of the Uniform Code of Military Justice. On 31 March 2006, the Deputy Assistant Secretary of the Army (Review Boards) accepted the applicant's resignation in lieu of elimination based on misconduct and directed that he be discharged with a service characterization of UOTHC. 8. Orders 178-1299 issued by Joint Forces Headquarters, CAARNG, Sacramento, CA on 27 June 2006, show the applicant was retroactively separated from the ARNG on 11 May 2006 with a service characterization of UOTHC. The authority for this action was National Guard Regulation 635-100 (Termination of Appointment and Withdrawal of Federal Recognition), paragraph 5a(3)(a) (Resignation) and the Verbal Orders of The Adjutant General on 11 May 2006. 9. Special Orders Number 230 AR, issued by the Departments of the Army and the Air Force, NGB, Washington, DC on 7 September 2006, show the applicant's Federal Recognition as an officer in the CAARNG was withdrawn as a result of honorable discharge. 10. Orders 250-0, issued by the Departments of the Army and the Air Force, NGB, Arlington, VA on 7 September 2006, show the applicant was discharged from the ARNG with an honorable characterization of service, effective 11 May 2006. 11. His NGB Form 22E shows he was discharged from the CAARNG on 11 May 2006, under the provisions of National Guard Regulation 635-100, paragraph 5a(3)(a), but shows his characterization of service as honorable. 12. An NGB Form 22A (Correction to NGB Form 22), dated 26 September 2006, corrected his NGB Form 22E to shows his characterization of service as UOTHC. 13. Special Orders Number 320 AR issued by Departments of the Army and the Air Force, NGB, Washington, DC on 19 September 2006, amended Special Orders Number 230 AR, dated 7 September 2006, to show the applicant's Federal Recognition as an officer in the CAARNG was withdrawn as a result of discharge UOTHC. 14. The applicant's record is void of evidence that he was a victim of sexual assault or that he was diagnosed with PTSD or any other behavioral health condition during his period of service. 15. The applicant consulted with legal counsel and voluntarily tendered his resignation from the Army in writing, under the provisions of Chapter 3, Army Regulation 600-8-24, for the good of the service - in lieu of trial by court-martial. A characterization of UOTHC is authorized and normally considered appropriate. 16. The applicant provides the following additional evidence in support of his petition, all of which is available in its entirety for the Board's consideration: a. A letter from a Case Manager for the California Army Board for Corrections of Military Records (CABCMR), dated 1 December 2021, wherein the applicant is informed that the CABCMR does not have the authority to consider his request for relief because his discharge was determined by the Regular Army and advised him to seek relief from the ABCMR. b. An email message from a staff member of the ARBA Case Management Division informing the applicant that his request was received and would be processed accordingly. c. Four letters of support, that state: (1) A former fellow officer, Captain , provided very favorable comments regarding the applicant's character, duty performance, and leadership abilities. Conversely, he provided less than favorable comments about their battalion commander at the time, and indicated he had a personal vendetta against the applicant that resulted in the loss of both his career and his marriage. (2) A former company First Sergeant (1SG) provided very favorable comments regarding the applicant's professionalism and infectious attitude and the fact that they formed a special bond before and during their deployment to Germany and Kosovo. He noted a marked difference in the applicant's attitude when he returned from his Officer Basic Course (OBC) training at Fort Huachuca, AZ prior to their deployment. Following the incident that resulted in the applicant's separation, the applicant was shunned by the unit leadership who attempted to force the 1SG to disarm him and take part in railroading him out of the Army, which he refused to do. In fact, he volunteered to testify on the applicant's behalf during the court-martial proceedings. (3) A Clinical Supervisor at Kaiser Permanente San Diego Medical Center Emergency Services provides positive comments regarding the applicant's leadership, moral character, and work ethic. He states the applicant suffers from combat related PTSD but has healthy coping mechanisms and excels at emergency nursing. He is a good example of Veteran reintegration in the private sector. (4) One of the applicant's former noncommissioned officers, RG, states the applicant shared some of his OBC experiences before deployment. While not telling him everything, he got the impression that something traumatic and crippling happened to the applicant during OBC a Fort Huachuca, AZ. He overheard a phone conversation where the applicant was seeking help but became frustrated when he was ignored. 17. 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. 18. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. The applicant contends a mitigating circumstance (MST) and a mitigating condition (PTSD). 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 CAARNG on 17 January 2002. He was honorably discharged on 26 March 2004 for the purpose of accepting an appointment as a commissioned officer. On 27 March 2004, he was appointed as a second lieutenant (2LT)/O-1 in the Army National Guard and ordered to active duty in support of Operation Enduring Freedom. * General Court-Martial (GCM) Number 4 issued by Headquarters, 21st Theater Support Command on 17 May 2006, show the applicant was arraigned at Mannheim, Germany, on the following offenses: Charge I – Article 107 – Specification: on or about 12 June 2005, with intent to deceive, make a false official statement. Charge II – Article 133 – Specification: on or about 7 June 2005, wrongfully and dishonorably, take nude pictures of Sergeant (SGT) SLB, without her knowledge and permission while she was unconscious in her bed. Charge III – Article 134 – Specification 1: on or about 7 June 2005, wrongfully had sexual intercourse with SGT , a woman not his wife and Specification 2: on or between 7 June 2005 and 9 June 2005, knowingly fraternized with SGT . * The proceedings were terminated on 15 February 2006 as the applicant requested discharge in lieu of trial by court-martial pursuant to the provisions of Chapter 3, Army Regulation 600-8-24, which was approved by the Department of the Army on 11 April 2006 with issuance of an UOTHC discharge. * Orders 178-1299 issued by Joint Forces Headquarters, CAARNG, Sacramento, CA on 27 June 2006, show the applicant was retroactively separated from the ARNG on 11 May 2006 with a service characterization of UOTHC. *Additional orders follow that mischaracterized his discharge to honorable and were later corrected. See ROP for full details. 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, ABCMR Record of Proceedings (ROP), letter from HQ, California Army national Guard (CAARNG), email messages, character references (four), National Guard Bureau (NGB) orders, NGB report of Separation and Record of Service, as well as other documents from his service record and separation. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV) and AHLTA. Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant contends that he was drugged and raped by a male servicemember, was deployed in a “damaged state” and was repeatedly denied requests for psychiatric attention. He contends he should not have deployed as an MST victim who was experiencing PTSD, depression, and suicidal ideation. The applicant contends that this experience, and these conditions, mitigate his misconduct of giving false statement, taking a nude photo of an unconscious soldier without her knowledge or permission, fraternization and sexual intercourse with a woman, not his wife. The applicant states he attempted to get support due to stress while deployed in his application, and this was supported by a character reference letter and a later appointment with the VA (28 January 2010). However, it is unclear if he attempted to get help before his legal charges or after. There are no mental health records available in his EHR from his time in service and no medical documents provided to support his assertions. e. Per the applicant’s electronic health record, he initially engaged in mental health care with the VA in 2010, though was only seen for a few encounters until reengaging in more consistent mental health care in 2021. A VA referral from 2021 indicates the applicant may have been seeking therapy through a Vet Center prior to returning to the VA, which would explain why no records are available. Since returning, he has been seen for case management and medication management. He has been diagnosed and treated for several disorders to include insomnia, alcohol use disorder, depression (depressive disorder and major depressive disorder, recurrent moderate), and PTSD, chronic. During this initial appointment with the VA (28 January 2010), he acknowledged that he’d never previously engaged in mental health care. He denied any combat or military related trauma, denied MST, but did report being exposed to trauma in his civilian job (border patrol), though asserted that these experiences did not bother him. It appeared that he attributed all of his trauma to going through the legal proceedings while in Kosovo. At this time, again, there was no mention of military related trauma other than his legal charges. The applicant went through a compensation and pension evaluation on 13 March 2013, was diagnosed with PTSD secondary to a reported plane accident in Germany in 2006 as well as the JAG proceedings (he reported facing “bogus rape charges that were dropped”). However, the applicant is not currently service connected for PTSD (10% for tinnitus). When he reengaged in mental health care through the VA in 2021, the applicant reported the MST as occurring in October of 2004 (during OCS). Character letters submitted also allude to a trauma happening while he was at OCS. f. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence he received a mitigating condition diagnosis while in the service, though there is sufficient evidence that he has since received a PTSD diagnosis that is likely connected to his service. There is also attestation and evidence to suggest that the applicant experienced a potentially mitigating experience (MST). However, his potentially mitigating condition and experience would not typically mitigate the offenses he was charged with. That said, he contends his misconduct was related to PTSD and MST, and per Liberal Consideration guidance, his contention is sufficient to warrant the Board’s consideration. 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 contends had a mitigating experience (MST) and a mitigating condition (PTSD). (2) Did the condition exist or experience occur during military service? Yes. The applicant does contend the experience occurred during his time in service. He also asserts that the PTSD developed, though undiagnosed, during his time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? NO. The applicant attests to being drugged and raped by a fellow soldier, and he attests to PTSD, depression and SI secondary to this experience. This assertion alone is worthy of consideration by the Board. However, there is insufficient evidence beyond self-report that the applicant was experiencing a mental health condition at his time of misconduct, as no medical records from his time in service were provided, and later medical records indicate he experienced the trauma related symptoms secondary to going through the JAG proceedings. There is also no record of the applicant reporting the MST while in the service, and he initially denied it when starting care, however he later did report it and numerous character letters reference knowing something traumatic happened when he was at OCS. To be clear, it is not uncommon for sexual assault survivors to initially not report or even deny it. The applicant has since been assessed and diagnosed with PTSD and records indicate this PTSD was reportedly due to a military related incident. Impulsive and risky behaviors can be associated with PTSD. However, there is no nexus between PTSD, or experiencing an MST, and committing adultery, fraternizing, taking nude photos of a woman without permission while she is unconscious, or giving false statement. This behavior is not part of the natural history or sequelae of PTSD. PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. Mitigation is not recommended. g. Of note, many of the character references report a toxic battalion commander, the overall belief that the applicant was targeted by command and suggest he did not do what he was initially accused of. However, this advisor is presuming the charges are accurate given the applicant requested a discharge in lieu of court martial, which is done in exchange for an admission of guilt. ? 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 he received a mitigating condition diagnosis while in the service, though there is sufficient evidence that he has since received a PTSD diagnosis that is likely connected to his service. Under liberal consideration, the Board recognized the applicant’s evidence to suggest that the applicant experienced a potentially mitigating experience (MST). During deliberation, the Board noted that beyond self-report that the applicant was experiencing a mental health condition at his time of misconduct, as no medical records from his time in service were provided, and later medical records indicate he experienced the trauma related symptoms secondary to going through the JAG proceedings. 2. The Board determined based on the advisory opine, there is no nexus between PTSD, or experiencing an MST, and committing adultery, fraternizing, taking nude photos of a woman without permission while she is unconscious, or giving false statement. This behavior is not part of the natural history or sequelae of PTSD. PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. The Board found the applicant’s post service letters of support compelling and noteworthy as to the testament of his character by his peers while on active duty. However, the Board found insufficient evidence of in-service mitigating factors for the serious misconduct to weigh a clemency determination. Furthermore, the Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to an honorable discharge. Therefore, the Board denied relief. 3. 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, USC, 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, USC, 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 regulation provides that 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. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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 600-8-24, in effect at the time prescribed policy and procedure governing transfer and discharge of Army officer personnel. a. Paragraph 1-16 states an officer pending court-martial charges or investigation with a review toward court-martial will not be separated without Headquarters, Department of the Army approval. b. Paragraph 1-22(a) states an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty, or the final revocation of a security clearance for reasons that do not involve acts of misconduct, for an officer. c. Paragraph 1-22(b) states an officer will normally receive an under honorable conditions characterization of service when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. Chapter 3 (Resignations) of the regulation prescribes the tasks, rules, and steps for processing voluntary resignations). Paragraph 3-13 (Rules for processing resignation for the good of the service in lieu of general court-martial) states an officer may submit a resignation for the good of the service in lieu of general court-martial if court-martial charges have been preferred against the officer with a view toward trial by general court-martial. An officer separated under this paragraph normally receives characterization of service of under other than honorable conditions. An officer who resigns for the good of the service (regardless of the character of service received) is barred from rights under laws administrated by the Veterans Affairs based on the period of service from which the officer resigned. e. Chapter 4 (Eliminations) of the regulation prescribes the process for elimination of an officer in the Army. Paragraph 4-1 (Overview) states an officer is permitted to serve in the Army because of the special trust and confidence the President and the nation have placed in the officer’s patriotism, valor, fidelity, and competence. An officer is expected to display responsibility commensurate to this special trust and confidence and to act with the highest integrity at all times. However, an officer who will not or cannot maintain those standards will be separated. 5. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) implements the specific authorities and reasons for separating Soldiers from active duty. It also prescribes when to enter SPD codes on the DD Form 214. a. Paragraph 2-1 provides that SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of Department of Defense and the Military Services to assist in the collection and analysis of separation data. This analysis may, in turn, influence changes in separation policy. SPD codes are not intended to stigmatize an individual in any manner. b. Paragraph 2-4 provides that RE codes are determined by the separation authority and reason for separation, not the character of separation. RE codes are placed on military discharge documents and determine whether or not one may reenlist or enlist in a Military Service at a later time. RE codes should be used in relation to the reason for separation for enlisted personnel in accordance with Army Regulation 601-210 (Regular Army and Reserve Components Enlistment Program). Officers do not have RE codes and reentry/future appointments are determined by Human Resources Command during the reappointment process. c. Paragraph 2-6 provides the SPDs and narrative reasons for separation that are applicable to officer personnel. It shows, in part, SPD DFS is the appropriate code to assign to an officer who is separated due to resignation in lieu of trial by court-martial. KFF is the appropriate SPD to assign to officers who are voluntarily discharged under Secretarial authority. 6. 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 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. 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; 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. 8. 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) AR20230000331 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1