IN THE CASE OF:  
 
  BOARD DATE: 17 November 2023 
 
  DOCKET NUMBER: AR20230006964 
 
 
APPLICANT REQUESTS: in effect, 
 
• upgrade his bad conduct discharge to an unspecified designation 

• a personal appearance before the Board 


 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record) 

• self-authored timeline of events • he would not be entitled to any pay or allowances while on excess leave 

• his leave balance as of that day was 25 days and requested this leave be granted in conjunction with the requested excess leave 

• if granted excess leave, he will be completely processed for discharge from the U.S. Army and may receive a separation physical examination prior to his departure on leave 

• if his punitive discharge is ultimately set aside, he will have to return to duty to complete any remaining sentence of confinement or any remaining obligated term of military service 

• if his punitive discharge was ultimately affirmed, that discharge would be mailed to him at the address shown or to such new address he would furnish to the Personnel Control Facility 
 
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 states that during his time in the Army he was subject to bullying and sexual harassment. He decided to go absent without leave (AWOL) as a result of feeling that he had no other escape from the harassment and out of fear of reporting it to his command without the feeling of humiliation. He was afraid to tell his command about the military sexual trauma (MST) he experienced and feared it would alienate him. Since getting out of the Army he has had continuing psychological issues related to the trauma he endured while being in the Army. It was not until recently that he sought to seek help to overcome his feelings about the situation. 
 
3.  The applicant provides a chronological timeline of events from July 2011 through May 2014 that discuss: 
 
 a.  In August 2011 roommates and friends began to harass him. 
 
 b.  In September 2011 the harassment increased and during a drunken night, he was attacked, knocked unconscious, and was sexually assaulted. His roommates said he fell out of bed, and he upheld that version of events for years. 
 c.  In late September into October 2011 he began to receive medical treatment for the concussion and psychological issues. The harassment continued and he began to have suicidal ideations. 
 
 d.  Between December 2011 and February 2012, a majority of the unit deployed including the people who harassed him, but his reputation remained. While on rear detachment he became socially isolated and extremely depressed but minor harassment continued. He felt that his medical providers failed to empathize with him. 
 
 e.  In March 2012, the rear detachment commander and first sergeant were made aware of his psychological issues, as his therapist inquired about a medical separation, but the command refused to initiate the separation. He was granted leave and went AWOL, as he saw it as his only way out. 
 
 f.  Sometime between May 2012 and May 2013, after renewing his driver’s license he was arrested by police. Shortly after his arrest, the Army arranged transportation for him to be returned to military control. 
 
 g.  Between May and July 2013, he served 55 days in an on-post confinement facility. 
 
 h.  Between July and September 2013, he returned to his unit and some harassment resumed but most of the original individuals who harassed him had left the unit. Following an altercation, the harassment stopped. 
 
 i.  Between October 2013 and May 2014, he resumed medical treatment. Despite the lack of harassment, the depression and post-traumatic stress symptoms continued. He still did not trust the medical providers he was seeing. As his pending court-martial approached, he began to remain in the Army. 
 
4.  A review of the applicant’s service record shows: 
 
 a.  He enlisted in the Regular Army on 5 April 2011 for a term of 6 years and 16 weeks. 
 
 b.  On 15 March 2012, he went AWOL and was considered a deserter and dropped from rolls (DFR) on 14 April 2012, according to DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), dated 15 April 2012. 
 
 c.  DD Form 616 (Report of Return of Absentee), dated 15 July 2013, shows that he was apprehended by civil authorities and returned to military control on 15 July 2013. 
 
 d.  His military record is void of a DD Form 458 (Charge Sheet), the general court-martial convening authority orders showing the findings and adjudgment of the court, the appellate review findings and determination, and any other documents pertaining to a court-martial. 
 
 e.  On 30 April 2014, DD Form 2707 (Confinement Order) shows an adjudged sentence of reduction to Private (E-1), confinement for three months, and he was to be discharged from the service with a bad conduct discharge, as the result of a general court-martial conviction. 
 
 f.  Orders 126-035, dated 6 May 2014, transferred control of the applicant to confinement at a Joint Regional Correctional Facility, reduced him in rank to Private (E-1), effective 14 May 2014, and discharged from the service upon completion of his confinement. 
 
 g.  On 27 June 2014, he acknowledged: 
  
 h.  On 27 June 2014, he declined a separation medical examination. 
 
 i.  A DD Form 2718 (Inmate’s Release Order) dated 24 June 2014, released him from confinement on 3 July 2014. 
 
 j.  Orders 219-1302, dated 7 August 2015, discharged him from the service effective 12 August 2015. 
 
 k.  The applicant was discharged from active duty on 12 August 2015 with a bad conduct discharge. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 10 months and 5 days of active service, with lost time from 15 March 2012 through 14 July 2013, and 30 April 2014 through 2 July 2014 (182 days). He had excess leave from 28 July 2014 to 12 August 2015 (381 days). He 
was assigned separation code JJD and the narrative reason for separation listed as “Court-Martial (Other),” with a reentry code of 4. 
 
5.  By regulation (AR 15-185), an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 
 
6.  By regulation (AR 635-200), a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 
 
7.  In reaching its determination, the Board can consider the applicants petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 
 
8.  Based on the applicant’s condition the Army Review Board Agency medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. 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. 
 
9.  On 3 July 2023, the Case Management Division (CMD) sent a request for redacted CID (Criminal Investigation Division) and Military Police Reports (ROI) for MST and sexual harassment pertaining to the applicant.  
 
10.  On 7 July 2013, CID responded to the request made by CMD, and stated that their search for records pertaining to the applicant yielded no results. 
 
 
11.  MEDICAL REVIEW: 
 
    a.  The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case.  Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (EMR)(AHLTA and/or MHS Genesis), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS).  The ARBA Medical Advisor made the following findings and recommendations:   
    b.  The applicant is applying to the ABCMR requesting an upgrade of his 12 August 2015 bad conduct discharge.  On his DD Form 149, he notes that TBI, Other mental health, and Sexual assault/Harassment are related to his request.  He states: 
 “During my time in the Army, I was subject to repeated bullying including sexual harassment. My decision to go AWOL was ultimately a result of feeling as if l had no other escape from this harassment, and a fear to report this to my command out of a feeling of humiliation.  In the time since my service, I have had continuing psychological symptoms related to the trauma I endured while being bullied within my unit.  It is only recently that I've sought to overcome my feelings about the situation and seek help and relief.” 
    c.  The Record of Proceedings details the applicant’s military service and the circumstances of the case.  The DD 214 for the period of service under consideration shows he entered the regular Army on 5 April 2011 and was discharged from the Fort Sill Personnel Control Facility on 12 August 2015 under the separation authority provided chapter 3 of AR 635-200, Active Duty Enlisted Administrative Separations (17 December 2009): Court-Martial (Other). It shows two periods of time lost under 10 USC 972: 15 March 2012 through 14 July 2013 and 30 April 2014 thru 2 July 2014.  There are no periods of Service in a Hazardous duty pay area. 
 
    d.  The applicant was evaluated for depression and anxiety following his return from a period of absence without leave (AWOL).  From a 25 September 2013 psychology encounter: 
 
“The Patient is a 21-year-old male.  Patient has been in the army since Apr 2011. This when SM [service member] began noticing he was more anxious and depressed.  SM reports he has always had anxiety and social withdrawal with chronic feelings of sadness. SM was seen by a med provider at old Madigan and was taking an SSRI and trazodone for sleep. The medication for anxiety and depression did not seem to work for him. Trazodone did not help with sleep.  
 
Unit had been deployed and SM was rear D [detachment] in Mar’12.  SM went on leave and was supposed to get married.  He decided not to return to post.  SM went AWOL in Jul’13.  SM reports that mood improved when he was AWOL but still continued.  SM notes that being reprimanded by superiors induced panic in him.” 
 
    e.  The applicant was diagnosed with and treated for major depression.  From a 26 April 2014 encounter: 
 
“Patient states that they denied the Chapter and are going to do the court martial. He goes to the court martial on Wednesday, April 30th, states he is nervous and anxious, but he is also happy to be getting to the end and to not be waiting anymore.  He states the most he can get is a year in jail, but his attorney is positive that he won’t go to jail.  
 
States his mom is flying out and that is helpful because he has been worried about her because she has been worrying about him.  States he will be happy when the ‘emotional rollercoaster ends.’  States he is also ready to get out of the Army and this unit because of the lack of support and the constant feeling that he is really being used as an example.  States he isn’t sleeping well and that his anxiety is increased, but states he knows it is due to this situation.” 
 
    f.  The EMR shows the applicant sustained a mild traumatic brain injury (TBI) in November 2011.  From an 28 January 2014 Neurology evaluation: 
 
“Reason for Consult: 
 
21-year-old active-duty male with complains of dizziness and fainting with strenuous activity x 18 months.  History of concussive injury in Nov 2011.  SM [service member] fell off his bunk while reaching for cell phone resulted in skull fracture and LOC [loss of consciousness].  Seen by TBI clinic and treated for concussive sequelae, headaches, and dizziness.  SM did not deploy with unit in Dec 2011, went AWOL on Mar 2012 and recently returned to unit July 2013.  
 
Reports that he has been seen by medical providers back home (West Virginia) and has been treated with Lexapro for depression, Hydroxyzine for panic attacks, 
 and Trazodone for sleep.  Recently seen by TBI clinic with recommendation for 
Neurology evaluation. 
 
History of present illness: … At the time of last evaluation, reported unchanged 
daily episodic headaches ranging from 2/10 to 10/10, with severe headaches 
approx. 3-4 days per week, likely aggravated by co-morbid depression, chronic 
severe stressors, and suboptimal sleep ... Also reported near daily dizziness and vertigo in association with headaches,  and near monthly episodes of syncope when seen 9/13, with two further episodes of syncope over recent months associated with severe headaches.  Presentation remained concerning for basilar migraine ... 
 
Recent EKG and Echocardiogram reported within normal limits. 
 
SM reports some interval improvement in headaches over past  6 weeks with no 
further episodes of syncope.  Headaches described as:  Right temporal headache when severe, generalized when less severe which is throbbing or pounding when severe, is dull/aching/boring, severity ranges from 2/10 to 10/10, and occurring daily and nearly continuous, with severe headaches occurring between 3 days per week ... 
 
Systemic: Feeling fine except headaches and depression, not feeling tired 
(fatigue), and not feeling poorly (malaise). 
 
Assessment/Plan: 
 
MIGRAINE HEADACHE (BASILAR ARTERY) 346.00: Symptom complex remains suspect for basilar migraine, with small interval improvement in headache profile and no reported episodes of syncope over recent several weeks on higher dosing of Topiramate, supportive of migrainous etiology. 
 
    g.  Other than for symptoms associated with his headaches, there were no complaints of cognitive issues or other residuals of a TBI e.g., (short- or long-term memory issues, concentration, social interactions, judgement, etc.). 
 
    h.  Neither the applicant’s separation packet,  Court-Martial Order, Charge Sheet (DD Form 458), or other documentation addressing his UCMJ violation(s) was submitted with the application or uploaded into iPERMS. 
 
    i.  The applicant was seen at a Veterans Hospital Administration facility for a Mental Health Rapid Access evaluation on 10 March 2023 at which time the applicant stated he was a victim of military sexual trauma (MST): 
 
“Veteran reported he has been receiving individual therapy from Vet  
Center for 4 months now.  Veteran stated he is looking for employment and was  
hopeful he could get change in his discharge to receive benefits.  Veteran was  
appreciative of call.  Veteran stated ‘I knew better. I was frustrated. I  
should have researched before going to meet with him today. I already knew.’ 
 
Veteran reported MST during military. Attempted to discuss with Veteran about  
discharge and community care.  Veteran stated he did not want to explore  
further options.  Veteran ended call normally and thanked provider for reaching out.” 
 
Kurta Questions:  
   
    (1)  Did the applicant have a condition or experience that may excuse or mitigate the discharge?  Applicant claims sexual assault/harassment and had major depression while in the Army. 
 
    (2)  Did the condition exist or experience occur during military service?  Applicant claims sexual assault/harassment and had major depression while in the Army. 
 
    (3)  Does the condition or experience actually excuse or mitigate the discharge?  Because both major depressive disorder and a history of MST are associated with 
avoidant behaviors, these conditions fully mitigate his period of AWOL.  If this was his only UCMJ violation, the recommendation of the ARBA medical advisor would be the applicant’s discharge be upgraded to Honorable with a narrative reason of Secretarial Authority because of the history of MST.   
 
BOARD DISCUSSION: 
 
1. The applicant's request for a personal appearance hearing was carefully considered.  In this case, the evidence of record was sufficient to render a fair and equitable decision.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.  2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted.  The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for consideration of discharge upgrade requests based on military sexual trauma. The Board considered the severity of the misconduct and whether there was sufficient evidence of mitigating circumstances to weigh in favor of clemency determination. After due consideration of the request, the Board determined the evidence presented sufficient to warrant a recommendation for relief.       
 
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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 12 August 2015 to show in block 24 (Character of Service) as under honorable conditions (general).     
 
 
  1/3/2024

I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. 
REFERENCES: 
 
1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 
 
2.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. 
 
a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 
 
b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 
 
3.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) states, a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 
 
4.  Army Regulation 635-8 (Separation Processing and Documents), in effect at the time, states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 
 
5.  By law (10 USC 1552), court-martial convictions stand as adjudged or modified by appeal through the judicial process. This Board is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. The ABCMR does not have authority to set aside a conviction by a court-martial.  
 
6.  On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 
 
7.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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. 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 based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. 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. 
 
8.  Section 1556 of Title 10, United States 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. 
 
 
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