IN THE CASE OF: BOARD DATE: 6 July 2023 DOCKET NUMBER: AR20230000138 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge and to have an appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 although it was wrong for him to leave his post and go absent without leave (AWOL), he did so for fear of his life and both physical and mental health. Being transgender and gay at the time, he had to keep this hidden but was quickly found out by his fellow Soldiers. From that point on he endured constant beatings and attacks physically and verbally. Although he reported it to his drill sergeant he did nothing and laughed it off and told him he need to "grow a pair of balls and stand up and be a man". He came to a point where he made the decision to kill himself or leave. The discharge he was given has affected him by not being able to get many job opportunities. 3. On the applicant's DD Form 149, he indicates sexual assault/harassment and being transgender as contributing and mitigating factors in the circumstances that resulted in his separation. 4. The applicant enlisted in the Regular Army on 23 February 2000 for 6 years. He did not complete training and was not awarded a military occupational specialty. The highest grade he held was E-1. 5. The applicant went AWOL on 29 July 2000, was dropped from the rolls on 27 August 2000, and surrendered to military authorities on 28 September 2000. 6. Court-martial charges were preferred against the applicant on 7 August 2001 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 29 July 2000 until on or about 1 August 2001. 7. He was assigned to the Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY effective 1 August 2001. 8. The applicant provided an Admission of AWOL on 7 August 2001, stating: a. He had been advised by his defense counsel that at the t time the government had not received the necessary documentation and/or records with which to obtain a conviction by a court-martial. This is not due to any fault of the government but merely to the time required to request and mail the documents and records. b. Knowing this to be true, he knowingly, willingly, and voluntarily declared that he had been AWOL from on or about 29 July 2000 to on or about 1 August 2001. He was making this admission for administrative purposes only so he could be processed out of the Army and realized in doing so he could be given a UOTHC discharge. 9. The applicant consulted with legal counsel on 7 August 2001 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of an UOTHC discharge; and the procedures and rights that were available to him. The first page of this request is completely blank, page 2 shows he was advised he could submit any statements he desired in his own behalf; however, the applicant waived this right. 10. The separation authority approved the applicant's request for discharge on 12 February 2002, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed that the applicant be reduced to the lowest enlisted grade and receive an UOTHC Discharge Certificate. 11. The applicant was discharged on 25 February 2002 in the grade of E-1. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court martial and his service was characterized as UOTHC. He was credited with 10 months and 24 days of net active service with 202 days of excess leave and 399 days of lost time. 12. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 13. 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. 14. In determining whether to grant relief the Boards for Correction of Military Records (BCMR) can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 15. MEDICAL REVIEW: a. The applicant requests an upgrade of his UOTHC discharge to honorable. He contends his misconduct was related to sexual assault/harassment and transgender identity. 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 23 February 2000; 2) The applicant went AWOL on 29 July 2000, was dropped from the rolls on 27 August 2000, and surrendered to military authorities on 28 September 2000; 3) Court-martial charges were preferred against the applicant on 7 August 2001 for violations of the Uniform Code of Military Justice (UCMJ). His Charge Sheet shows he was charged with being AWOL from on or about 29 July 2000 until on or about 1 August 2001. b. 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. No military BH-related records were provided for review. A review of JLV was void of any BH related history for the applicant and he does not have a service-connected disability. No civilian BH-related records were provided for review. c. The applicant requests upgrade of his uncharacterized discharge to honorable and contends his misconduct was related to sexual assault/harassment and transgender identity. A review of the records was void of any BH-related diagnosis or treatment for the applicant during service or post-service and he provided no documentation supporting his assertion of sexual assault/harassment. Additionally, Department of the Army CID memorandum dated 8 March 2023 showed that a search of the Army criminal file index found no records pertaining to the applicant. In absence of documentation supporting his contention of sexual assault/harassment, there is insufficient evidence to support that applicant’s claim that his misconduct was related to sexual assault/harassment. With regard to transgender identity, transgender identity, in and of itself, does not mitigate misconduct characterized by going AWOL. Alternatively, if the applicant’s contention of being sexually assaulted/harassed because of his sexual identity, is taken as fact, his misconduct characterized by going AWOL to escape the continued assault would be mitigated by his experiences. warranted. d. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence in the records that the applicant had a condition or experience during his time in service that mitigated his misconduct. However, the applicant contends his misconduct was related to sexual assault/harassment and transgender identity, 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 his misconduct was related to Other Mental Health issues. (2) Did the condition exist, or experience occur during military service? Yes. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant requests upgrade of his uncharacterized discharge to honorable and contends his misconduct was related to sexual assault/harassment and transgender identity. A review of the records was void of any BH-related diagnosis or treatment for the applicant during service or post-service and he provided no documentation supporting his assertion of sexual assault/harassment. Additionally, Department of the Army CID memorandum dated 8 March 2023 showed that a search of the Army criminal file index found no records pertaining to the applicant. In absence of documentation supporting his contention of sexual assault/harassment, there is insufficient evidence to support that applicant’s claim that his misconduct was related to sexual assault/harassment. With regard to transgender identity, transgender identity, in and of itself, does not mitigate misconduct characterized by going AWOL. Alternatively, if the applicant’s contention of being sexually assaulted/harassed because of his sexual identity, is taken as fact, his misconduct characterized by going AWOL to escape the continued assault would be mitigated by his experiences. warranted. 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 Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant requested discharge under chapter 10 of AR 635-200. Such discharges are voluntary requests for discharge in lieu of trial by court-martial and carry an under other than honorable conditions characterization of service. 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 insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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, 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. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, 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 sets forth the basic authority for the separation of enlisted personnel. The version in effect at that time provided that: a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. 4. 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 Discharge Review Boards and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including Post-Traumatic Stress Disorder; 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. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and BCM/NRs on 25 July 2018, 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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.) AR20230000138 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1