IN THE CASE OF: 
 
  BOARD DATE: 29 August 2023 
 
  DOCKET NUMBER: AR20230001610 
 
 
APPLICANT REQUESTS:  upgrade of his discharge under other than honorable conditions (UOTHC) discharge to a discharge under honorable conditions (general) and to appear before the Board via video/telephone. 
 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record) 

• Self-authored statement 


 
FACTS: 
 
1.  The applicant did not file within the three-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 while serving his country honorably, he was sexually assaulted during a two-week unit training exercise in Hawaii. Sergeant (SGT) S___ pushed him to the ground while holding a bayonet, held him against the ground, and had forced anal sex with him. As he struggled to get away, SGT S covered his mouth and said he would kill him. SGT S was openly gay, and the applicant was married to a woman at the time. Prior to this incident, the applicant had discussed the possibility that he may be bi-sexual with SGT S. He used that conversation as a reason to sexually assault the applicant and told the applicant he could ruin his Army career. The applicant sought medical attention from the medics that day and was sent for treatment for bruised ribs. He was prescribed pain medication and sent to the barracks to await his unit's return from the training exercise. By the time the unit returned, SGT S had told several Soldiers a different version of the story and the applicant was subjected to harassment in the form of derogatory homosexual name calling. When he sought help from leadership, he was told they felt it was consensual.  
 
     a.  He began experiencing post-traumatic stress disorder (PTSD) and having nightmares. He started using cocaine and marijuana as coping mechanisms. He 
attempted treatment, but things got worse. No one would help him because of the don't ask, don't tell policy. His credibility suffered and he was forced out of training. 
 
     b.  To blackmail the applicant and cover his tracks, SGT S went to the applicant's house and told his wife that he and the applicant had a relationship. This led to his wife leaving him. He was forced to move into the barracks where the gay bashing and constant ridicule got even worse. Believing he had exhausted all avenues for receiving help, his situation got worse. He was kicked out of the Army, his wife divorced him, and he has not been in a relationship for 20 years. He currently suffers from anxiety, severe PTSD, and night terrors from the military sexual trauma (MST). He has been homeless for 5 years and is currently working with the Department of Veterans Affairs for mental health and substance abuse. 
 
3.  The applicant enlisted in the Regular Army on 30 May 2002, for a period of 4 years. Upon completion of initial entry training, he was assigned to a unit at Schofield Barracks, HI.  
 
4.  The applicant was promoted to the rank/grade of private first class (PFC)/E-3 effective 1 January 2003. 
 
5.  On 10 March 2003, the applicant was counseled regarding his violation of the Army Drug Substance Abuse Program after a urine sample he provided on 3 March 2003 tested positive for cocaine and marijuana. He was advised he would be recommended for punishment. He was further advised that continued behavior of this nature could result in separation from the Army with a less than honorable characterization of service and the potential impact of such a separation. 
 
6.  On 29 May 2003, the applicant's unit requested he be given a pre-separation physical because he was being processed for administrative separation. 
 
7.  On 29 May 2003, the applicant underwent a mental status evaluation. The examining psychiatrist determined he was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to understand and participate in the proceedings. He was psychiatrically cleared for any administrative action deemed appropriate by command. 
 
8.  The applicant underwent a pre-separation medical examination on 30 May 2003. He was determined to be medically qualified for retention and/or administrative separation. 
 
9.  On 3 June 2003, the applicant accepted field grade nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using cocaine between on or about 25 February 2003 and 3 March 2003. His punishment 
consisted of reduction from PFC/E-3 to private/E-1, forfeiture of $575.00 pay, extra duty for 45 days, and restriction for 45 days. 
 
10.  On 23 June 2003, the applicant was counseled regarding a urine sample he provided on 29 May 2003, which tested positive for cocaine and marijuana. He was advised he would be recommended for punishment. He was further advised that continued behavior of this nature could result in separation from the Army with a less than honorable characterization of service and the potential impact of such a separation. 
 
11.  The applicant's immediate commander notified the applicant on 6 August 2003 of his intent to initiate actions to separate him under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for commission of a serious offense. The specific reasons cited were the applicant's repeated use of cocaine and marijuana between on or about 3 February 2003 and 8 July 2003 and failing to report for extra duty on 14 and 15 June 2003. He was advised that he was being recommended for a discharge UOTHC.  
 
12.  The applicant acknowledged receipt of the proposed separation notification on  8 August 2003. He was advised of the reasons for separation and of the rights available to him. He consulted with counsel and elected not to submit a statement in his own behalf. 
 
13.  The applicant's immediate commander formally recommended his separation prior to the expiration of his term of service under the provisions of AR 635-200, Chapter 14, by reason of commission of a serious offense. The battalion commander concurred with the separation action and recommended a characterization of service of UOTHC. 
 
14.  The applicant was absent without leave (AWOL) from 21 August 2003 until 27 August 2003. He went AWOL again on 2 September 2003. 
 
15.  His separation action process continued during his absence. The separation authority approved the recommendation for separation and directed the applicant be issued an UOTHC Discharge Certificate. 
 
16.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 24 October 2003, under the provisions of AR 635-200, paragraph 14-12c(2), by reason of misconduct, with separation code "JKK." His service was characterized as UOTHC. He was credited with 1 year, 3 months, and 19 days of net active service this period. He had lost time due to AWOL from 21 August 2003 until 26 August 2003 and from 2 September 2003 until 1 October 2003. He did not complete his first full term of service. 
17.  On 28 March 2023, an agency staff member) requested the applicant provide medical documentation in support of his claims of PTSD, depression, and anxiety. He was afforded a period of 14 days to respond. To date, he has not responded. 
 
18.  On 30 March 2023, in the processing of this case the U.S. Army Criminal Investigation Division, searched their criminal file indexes, which revealed no Criminal Investigative and/or Military Police Reports pertaining to the applicant. 
 
19.  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. 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. 
 
20.  MEDICAL REVIEW: 
 
    a.  The applicant requests an upgrade of his UOTHC discharge to under honorable conditions, general.  He contends his misconduct was related to PTSD secondary to 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 into the Regular Army on 30 May 2002; 2) On 3 June 2003, the applicant accepted field grade nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using cocaine between on or about 25 February 2003 and 3 March 2003; 3) On 23 June 2003, the applicant was counseled regarding a urine sample he provided on 29 May 2003, which tested positive for cocaine and marijuana. He was advised he would be recommended for punishment; 4) The applicant's immediate commander notified the applicant on 6 August 2003 of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for commission of a serious offense. The specific reasons cited were the applicant's repeated use of cocaine and marijuana between on or about 3 February 2003 and 8 July 2003 and failing to report for extra duty on 14 and 15 June 2003; 5) The applicant was absent without leave (AWOL) from 21 August 2003 until 27 August 2003. He went AWOL again on 2 September 2003; 6) The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 24 October 2003, under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of misconduct. 
    c.  The 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. Included in the applicant’s casefile was Report of Mental Status Evaluation, dated 29 May 2003, that showed the examiner determined the 
applicant was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to understand and participate in the proceedings. He was psychiatrically cleared for any administrative action deemed appropriate by command. Also included in the casefile was a Report of Medical Examination, dated 30 May 200, that showed the applicant was deemed medically qualified for administrative separation. No other military BH records were provided for review.    
    d.  A review of JVL showed the applicant is not currently service-connected for a BH disability. However, his Initial PTSD DBQ, dated 25 May 2022, showed the examiner diagnosed the applicant with PTSD secondary to MST characterized by the applicant having reportedly been raped by his NCO on two separated occasions, during training exercises in Hawaii and Fort Polk.  The applicant reported using marijuana and cocaine to self-medicate, eventually leading to administrative separation. The examiner noted the applicant reported flashbacks, avoidance, hyperarousal, social and occupational impairment, and negative alterations in mood.  The examiner noted that post-service the applicant reported a history of abstinence from drugs for a period of 7 to 8 years, but began using again, for a period, approximately 3 years ago due to reexperiencing trauma related nightmare.  He reported that his drug use eventually resulted with him committing check fraud and being put on probation.  At the time of the Initial PTSD DBQ Examination, the applicant was reportedly incarcerated at a minimal security prison facility and had been there for 10 months. 
    e.  The applicant’s initial BH treatment encounter with the VA appears to have occurred at the VA Central Plains HSC, on 25 March 2021, whereby the applicant was admitted to the Domiciliary Substance Use Disorder (SUD) Program for treatment of Alcohol Use, Methamphetamine Use, and Cannabis Use Disorders.  He was also noted to have a history of PTSD secondary to MST and ADHD childhood onset. On 29 March 2021 the applicant underwent a psychosocial assessment as part of the SUD program and reported a history of childhood physical and sexual abuse, being a victim of sexual assault as an adult both during and after military service.  He reported a history of cannabis and alcohol use that began at age 10 years-old, a history of cocaine use at 21 year-old, and a history of stimulant use, beginning approximately 2 years ago.  Reported drug use provided relief from loneliness, depression, and anxiety. He reported he discontinued all drug use prior to joining the military but used cocaine and cannabis to self-medicate after the sexual assault.  He reported his longest period of abstinence as 5 years between 2005 – 2010 and having been sober for 6-months at the time of the encounter.  The applicant shared that childhood trauma, MST and related PTSD symptoms, greatly impact his life and contribute to current SUDs.  It was noted that the applicant’s focus of treatment would be SUD and PTSD. Records showed the applicant completed the program on 6 May 2021 and transitioned to step-down outpatient treatment through June 2021.  The applicant next BH-related engagement with the VA occurred on 25 May 2022, in the form of his Initial PTSD DBQ Examination; the results of the examination are outlined earlier in this paragraph. 
    f.  Encounter note dated 21 September 2022 showed the applicant was assessed for PTSD and diagnosed with Chronic PTSD secondary MST.  It was recommended he undergo trauma-based treatment and he agreed to Cognitive Processing Therapy (CPT).  Records showed the applicant successfully completed CPT on 5 December 2022 with noted improvement in depression and PTSD scores, and that the applicant maintain sobriety throughout the process. Records showed the applicant has remained in outpatient treatment through July 2023 with good result, and that he has maintained sobriety.  Records also showed the applicant entered the Grant Per Diem Program on 1 November 2022 and as of 13 April 2023 was still seeking permanent housing.  No civilian BH records were provided for review. 
    g.  The applicant is seeking upgrade of his UOTHC discharge to under honorable conditions, general.  He contends his misconduct was related to PTSD.  A review of the records was void of any BH diagnosis or treatment history during service.  Post-service records showed the applicant diagnosed by the VA with PTSD Chronic secondary to MST, Opioid Abuse in remission, Alcohol Abuse in remission, and Other Stimulant Dependence in remission. As there is an association between PTSD/MST and avoidance and PTSD/MST and comorbid substance abuse, there is a nexus between the applicant’s misconduct characterized by wrongful use of cocaine and cannabis and going AWOL, and his diagnosis of PTSD/MST, such that his misconduct is mitigated by the disorder. Given the applicant’s history of PTSD/MST, this advisor recommends the Board considered upgrade to HD/SA.  
    h.  Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence that the applicant had an experience or condition 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 is diagnosed with PTSD secondary to MST experienced by his NCO during active service.  
    (2)  Did the condition exist or experience occur during military service? Yes.    
    (3)  Does the condition or experience actually excuse or mitigate the discharge? Yes.   A review of the records was void of any BH diagnosis or treatment history during service.  Post-service records showed the applicant diagnosed by the VA with PTSD Chronic secondary to MST, Opioid Abuse in remission, Alcohol Abuse in remission, and Other Stimulant Dependence in remission. As there is an association between PTSD/MST and avoidance and PTSD/MST and comorbid substance abuse, there is a nexus between the applicant’s misconduct characterized by wrongful use of cocaine and cannabis and going AWOL, and his diagnosis of PTSD/MST, such that his misconduct is mitigated by the disorder. Given the applicant’s history of PTSD/MST, this advisor recommends the Board considered upgrade to HD/SA.  
BOARD DISCUSSION: 
 
1.  The Board determined 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 and all supporting documents, the Board found that relief was not 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 applicant was discharged from active duty due to misconduct, commission of a serious offense (illegal drugs). 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 that led to the misconduct; however, the Board also note that the applicant tested positive on 3 March 2003 for using cocaine and marijuana; he again tested positive on 29 March 20023 for again using cocaine and marijuana, and he twice failed to report to extra duty as part of his NJP punishment. He also failed to complete his enlistment commitment due to his own misconduct (he completed 1 year and 3 months) and he was AWOL from 21 to 26 August 2003 and again from 2 September to 1 October 2003. The Board acknowledges the presence of mitigating factors but disagreed with the medical advisor’s recommendation that his service should be upgraded to an honorable/Secretarial Authority discharge. Based on a preponderance of evidence, the Board determined that the applicant’s service clearly 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. The Board further determined this upgrade does not change the reason he was separated or any of the corresponding discharge codes.  
  
BOARD VOTE: 
 
Mbr 1 Mbr 2 Mbr 3 
 
xx: xx: xx: 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 24 October 2003 showing: 
 
• Character of Service: General, Under Honorable Conditions 

• Separation Authority: No Change  

• Separation Code: No Change 

• Reentry Code: No Change  

• Narrative Reason for Separation: No Change 


 
    8/29/2023

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. 
 
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 the Army Review Boards Agency (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 635-200 sets forth the basic authority for the separation of enlisted personnel.  
 
 a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. 
 
 b.  Paragraph 3-7b states 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 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if merited by the Soldier’s overall record. 
 
5.  Army Regulation 635-5-1 (Separation Program Designator Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. It states that the 
separation code "JKK" is an appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14, by reason of misconduct.  
 
6.  On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Navy 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 under other than honorable conditions (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.  
 
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//