IN THE CASE OF:  
 
  BOARD DATE: 17 November 2023 
 
  DOCKET NUMBER: AR20230006999 
 
 
APPLICANT REQUESTS: 
 
• an upgrade of his general, under honorable conditions discharge to honorable 

• a personal appearance before the Board 


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

• Self-Authored Statement 

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

• Department of Veterans Affairs (VA) Screenshots (5 pages) 


 
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 he is requesting an upgrade of his discharge to honorable. He would like to apply for VA benefits due to post-traumatic stress disorder (PTSD) and for a VA home loan. The applicant marked PTSD and sexual assault/harassment on the application as contributing factors related to his discharge. He further notes in his self-authored statement: 
 
 a.  The applicant provides a brief overview of his training leading to his first duty station in Korea. His grandfather was a Vietnam Veteran, and he was determined to make his family proud. He was enjoying his time as a Soldier in Korea and received regular mail from friends and family at home. His life quickly changed when a letter was inadvertently delivered to the wrong Soldier, and it contained private details of his sexuality. The Soldier that received the letter shared the information and rumors that the applicant was bisexual/gay began circulating. He was shunned and ridiculed; however, things took a turn for the worse.  
 b.  He received a knock at his barracks doors and recognized the two Soldiers, he had seen them at the gym. They shared with him that they heard the rumors, recognized how he was being treated, wanted to chat, asked if they could enter the room and brought beer with them. He cannot remember their names but did remember one was a second lieutenant (2LT) and the other a warrant officer. It started out well until he was asked if he wanted to “have sex” with one of them. He responded “no,” and they continued to try and persuade him. He did not think much of it until they both began to get irritated, almost angry, and noticed the tension in the room. He then asked them to leave. Before he knew what was happening, his sock was shoved in his mouth as one held him down, the other raped him, and they took turns. There was nothing he could do but cry. He figured if he fought it, it would only get worse. He vividly remembers the pain and the whispers in his ears such as, “I know your “f__ a__” likes it.” When it was over, he laid completely still until he heard the barracks door close. 
 
 c.  He looked up to see if they had departed and noticed them both standing there with “menacing smirks” on their face. The lieutenant told him not to bother reporting it because no one would believe him over them. He believed it because he was already being picked on and harassed, the sergeants knew about it, and no one helped him. He was embarrassed and that night he just balled up in the shower as blood pooled. He continued to be harassed and they returned to his room and attempted to gain entry. He was followed to the gym, and he felt he could not escape them. No one is his platoon would speak to him and when he finally gathered the strength to say something, he was not given the time of day by this first sergeant (1SG) nor his master sergeant (MSG). He was instead told that he cold be kicked out under the “Don’t Ask Don’t Tell” policy. He did not want to disappoint his family and elected to “take the abuse over getting kicked out.” He was raped two more times by the same two individuals, and despite others knowing, no one did anything to help him. He found out he had contracted a sexually transmitted disease after the second rape. He attempted to tough it out and buy his time because he knew he would be leaving soon, but his depression ultimately resulted in him receiving an Article 15. 
 
 d.  He received orders to Walter Reed Army Institute of Research (WRAIR) and knew things would improve; however, other Soldiers from Korea were also sent to WRAIR, and the same rumors began to resurface. He even got married to someone he barely knew to move off base, in hopes of eliminating the constant bullying, and begin given the cold shoulder. His depression ultimately got ahold of him, and he began spiraling causing him to be late to several formations. He lost hope, his vision of authority was tarnished, and he could not receive help. It became very tense and the Commander at WRAIR ultimately decided a discharge was in his best interest. He was informed that his discharge would automatically upgrade after one year to honorable and he would be able to his Post 9/11 GI Bill benefits. He agreed to sign under those pretenses. He was young and naïve and did not bother to pay attention to the details. An upgrade in his discharge would allow him to receive the benefits to care for his family and to find work. He is still plagued by nightmares of what occurred to him. He is still proud of his service but recognizes that they are evil people in the world.  
 
3.  The applicant provides: 
 
 a.  His DD Form 214 for his active service period from 28 July 2005 to 27 September 2007, to be referenced in the service record. 
 
 b.  Screenshots from the VA site to show pages 1 through 5 of 121 of his health summary. Pages 4 and 5 include email traffic from the applicant and mental health discussing complications of his antidepressant prescription.  
 
4.  A review of the applicant’s service record shows: 
 
a. He enlisted in the Regular Army on 28 July 2005. 


 
b.  His Enlisted Record Briefs (ERB) show he served in Korea from approximately 28 November 2005 to 26 November 2006. 
 
 c.  A DA Form 4126-R (Bar to Reenlistment Certificate) shows a bar was initiated on the applicant effective 22 March 2007. Block 14 (Other Factual and relevant Indicators of Untrainability and Unsuitability) outlined the following: 
 
• counseled repeatedly on his failure to report to work by his noncommissioned officer in charge (NCOlC), the 1SG, and the HQCO CDR 

• counseled by his NCOIC on insubordinate behavior and being disrespectful to his superiors 

• caused trouble in the civilian community, and is awaiting a court appearance 16Apr07 for those charges, included a Charge Summary from Montgomery County, MD, dated 20070224 


 
 d.  The applicant acknowledged receipt of a memorandum from his commanding officer referring him for a mental health evaluation on 10 August 2007. 
 
 e. A DA Form 3822-R (Report of Mental Status Evaluation), dated 13 August 2007, confirmed the applicant was command referred for a mental evaluation. The physician noted in the remarks, the applicant was not an imminent danger to himself or to others and had no psychiatric diagnosis. The further noted the applicant did not meet the criteria for inpatient psychiatric hospitalization and should be held responsible for his actions. The evaluation outlined the following: 
 
• normal behavior and fully alert 

• fully oriented and unremarkable mood 

• clear thinking process, normal thought content, and good memory 

• he had the mental capacity to understand and participate in the proceedings 

• he was mentally responsible 

• he met the retention requirements of Chapter 3, AR 40-501 


 
 f.  The applicant underwent a medical evaluation for the purpose of separation which indicated he had trouble with his teeth/gums, foot, and knees. He was subsequently marked qualified for service. 
 
• DD Form 2697 (Report of Medical Assessment) dated 21 August 2007 

• DD Form 2807-1 (Report of Medical History) dated 21 August 2007 

• DD Form 2808 (Report of Medical Examination) dated 10 September 2007 


 
g.  On 17 September 2007, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), Chapter 14 for patterns of misconduct. The applicant acknowledged receipt of the notification of separation action on the same day. The reasons for his proposed action were: 
 
• Company Grade Article 15 received on 21 March 2007 for failure to report to his appointed place of duty on four different occasions (not available in the service record) 

• on or about 10 and 11 May he displayed improper professional conduct towards the 1SG, the commander, and the NCOIC; he was counseled 

• 30 June 2007, he failed to be at his appointed place of duty, 0635 formation 

• 10 August 2007, he failed to be at this appointed place of duty, 0635 formation and 0900 work-call 

• 27 August 2007, failed to be at this appointed place of duty, 0635 formation 
 
h.  On 18 September 2007, after consulting with legal counsel, he acknowledged:  
 
• the rights available to him and the effect of waiving said rights 

• he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him 

• he may apply to the Army Discharge Review Board or the ABCMR for upgrading 

• he elected not to submit statements on his own behalf 
 
i.  The immediate commander initiated separation action against the applicant for patterns of misconduct. He recommended that his period of service be characterized as general, under honorable conditions.   
 
j.  On 27 September 2007, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation under the provisions of AR 635-200, Chapter 14, paragraph 14-12b for patterns of misconduct. He would be issued a general, under honorable conditions discharge. 
 
k.  Orders 268-0003 dated 25 September 2007, discharged the applicant from active duty with an effective date of 28 September 2007. 
 
l.  On 27 September 2007, he was discharged from active duty with a general, under honorable conditions characterization of service. His DD Form 214 shows he completed 2 years and 2 months of active service with no lost time. He was assigned separation code JKA and the narrative reason for separation listed as “Pattern of Misconduct,” with a reentry code of 3. It also shows he was awarded or authorized: 
 
• National Defense Service Medal 

• Global War on Terrorism Service Medal 

• Korea Defense Service Medal 

• Army Service Ribbon 

• Overseas Service Ribbon 


 
5.  On 7 July 2023, the U.S. Army Criminal Investigation Division (CID) provided a response for the processing of this case. CID conducted a search of the Army criminal files indexes utilizing the applicant’s information and the search revealed no records pertaining to the applicant. 
 
6.  On 28 December 2010, the applicant was notified the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge.  
 
7.  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.   
 
8.  By regulation (AR 635-200), action will be taken to separate a Soldier for misconduct, such as patterns of misconduct, when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed.   
 
9.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 
 
10.  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 (AHLTA), 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 under honorable conditions (general) discharge.  On his DD 149, he noted PTSD, Sexual assault/harassment, and DADT are related to his request.  He states in part: 
“I received a I knock at my barracks door, and it was two soldiers that I have seen before at the gym. They came to my door under the pretense that they noticed how people treated me and they have also heard the rumors [I was bisexual or gay].  They brought beers and asked if they could come in.  I do not remember their names, but I know that one was a warrant officer and the other a second lieutenant.  
It was ok at first but after a while and I cannot even remember which one, but one asked If I would like to have sex with me. When I said no, they continued to try and persuade me.  I did not think much of it and thought they would just stop asking. 
They both began to get irritated, almost angry.  I noticed the tension and asked them to leave.  Before I know it, the lieutenant is attempting to hold me down and trying to stuff my own sock in my mouth.  Once the warrant officer got involved there was nothing I could do.  They took turns raping me, one held me down while the other sodomized me.  All I could do was lay there and cry.” 
    c.  The Record of Proceedings details the applicant’s military service and the circumstances of the case.  His DD 214 for the period of Service under consideration shows he entered the Regular Army on 28 July 2005 and was discharged under  honorable conditions (general) on 27 September 2007 under the separation authority provided by paragraph 14-12b of AR 635-200, Personnel Separations – Enlisted Personnel (1 November 2000): Pattern of Misconduct.  It does not contain a period of Service in a hazardous duty pay area. 
    d.  The applicant’s previous request for a discharge upgrade was denied by the ADRB on 10 December 2010 (AR20100010799).  Rather than repeat their findings here, the board is referred to the record of proceedings for that case.  Because this denial was before the institution of liberal consideration polices, this review will concentrate on evidence of a potentially mitigating mental health condition as well as new evidence submitted with this application. 
    e.  On 17 September 2007, his company commander informed him of the initiation of action to separate him under paragraph 14-12b or AR 635-200: 
• The reasons for my proposed action are as follows: 

• On 21 March 2007 you received a Company Grade Article 15 for failing to report to your assigned place of duty, the Logistic Supply Division on four separate occasions and failed to report for the Physical Training Formation on two separate occasions. 

• On or about 10 and 11 May, you displayed improper professional conduct toward the First Sergeant, your Commander, and the Noncommissioned Officer In Charge.  You received a counseling statement dated 12 May 2007. 

• On or about 30 June 2007 you failed to be at your prescribed place of duty to wit: 0635 hours formation.  You were given a counseling statement and corrective training dated 1 August 2007. 

• On or about 10 August 2007 you failed to be at your prescribed place of duty to wit: 0635 hours formation and 0900 hours work call.  You were given a counseling statement dated 20 August 2007. 

• On or about 22 August 2007 you failed to be at your prescribed place of duty to wit: 0635 hours formation. You were given a counseling statement and corrective training dated 23 August 2007. 

    f.  The commander of the Walter Reed Army Institute of Research approved his separation on 27 September 2007. 
    g.  Review of his records in JLV shows he has been awarded several VA service-connected disability ratings, including one for PTSD apparently related to his MST which the record notes as “Korea x 3”. 
Kurta Questions: 
    (1)  Did the applicant have a condition or experience that may excuse or mitigate the discharge?  YES: PTSD due to MST 
    (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. As there is an association between PTSD and military sexual assault with  avoidant behaviors and  resistance to authority, there is a nexus between the applicant’s repeated Failures to report and “improper professional conduct” toward his leadership. 
Given the documented history of military sexual trauma, the medical advisor recommends the applicant’s discharge be upgraded to Honorable with the narrative reason changed to Secretarial Authority. 

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 equitabledecision.  As a result, a personal appearance hearing is not necessary to serve theinterest of equity and justice in this case.
2.After reviewing the application and all supporting documents, the Board found thatrelief was warranted. The Board carefully considered the applicant’s request, supportingdocuments, evidence in the records, applicable regulatory guidance and  published DoDguidance for liberal consideration of discharge upgrade requests. The Board consideredthe applicant's statement, record of service, the frequency and nature of the misconductand the reason for separation and whether there was sufficient evidence of mitigatingcircumstances to weigh in favor of a clemency determination.  In accordance withregulatory guidance, based on the preponderance of the documentation, the Boardfound sufficient evidence of an error or injustice to warrant a recommendation for relief.


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 amending his DD214 for the period ending 27 September 2007 to show:•(Item 24)  Character of Service:  Honorable•(Item 25)  Separation Authority:  AR 635-200•(Item 26)  Separation Code:  JFF•(Item 28)  Narrative Reason for Separation:  Secretarial Authority



Microsoft Office Signature Line...

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 ofmilitary records must be filed within 3 years after discovery of the alleged error orinjustice. This provision of law also allows the ABCMR to excuse an applicant's failure totimely file within the 3-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.Army Regulation 15-185 (ABCMR) prescribes the policies and procedures forcorrection of military records by the Secretary of the Army, acting through the ABCMR.The ABCMR begins its consideration of each case with the presumption ofadministrative regularity, which is that what the Army did was correct.

a.The ABCMR is not an investigative body and decides cases based on theevidence 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 evidenceor 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), in effectat the time, sets forth the basic authority for the separation of enlisted personnel.
a.An honorable discharge is a separation with honor. The honorablecharacterization 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 member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

c.Chapter 14 of the regulation states action will be taken to separate a Soldier formisconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed.   

4.On 3 September 2014, the Secretary of Defense directed the Service DischargeReview Boards (DRBs) and Service Boards for Correction of Military/Naval Records(BCM/NRs) to carefully consider the revised post-traumatic stress disorder (PTSD)criteria, detailed medical considerations and mitigating factors when taking action onapplications from former service members administratively discharged under other thanhonorable conditions and who have been diagnosed with PTSD by a competent mentalhealth professional representing a civilian healthcare provider in order to determine if itwould be appropriate to upgrade the characterization of the applicant's service.

5.On 25 August 2017, the Office of the Undersecretary of Defense for Personnel andReadiness issued clarifying guidance for the Secretary of Defense Directive to DRBsand BCM/NRs when considering requests by Veterans for modification of theirdischarges due in whole or in part to:  mental health conditions, including PTSD,traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberalconsideration to Veterans petitioning for discharge relief when the application for relief isbased, in whole or in part, on those conditions or experiences. The guidance furtherdescribes evidence sources and criteria and requires boards to consider the conditionsor experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 
 
6.  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.   
 
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 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.   
 
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. 
 
7.  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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