IN THE CASE OF: BOARD DATE: 21 September 2023 DOCKET NUMBER: AR20230001275 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * self-authored affidavits (two) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20170018308 on 5 August 2020. 2. The applicant states he has been incarcerated since 7 December 1995. He joined the Army in 1977 under duress from the County Sheriff and his father who had him locked up in the county jail. He was sexually assaulted by some older prisoners about three or four months before his eighteenth birthday. It was an election year, and his father was running for County Supervisor and the Sheriff was running for reelection. If news got out about his sexual assault it would have been bad for both of them. So, they conspired to cover it up by keeping him out of school and making him join the military. The sheriff said if he told anyone what happened and returned to Mississippi, he would put him in the state prison. a. Once he was in the Army, he never received any treatment for the traumatic experience that led to him not being able to adjust to the Army life because he was too ashamed to talk about what happened to him. He shared what happened to him with his motor Sergeant, who advised him to keep it to himself because if the story spread amongst his fellow Soldiers, it would be hell to live in the barracks with them. b. He fell in love with a German woman who talked him into getting out of the Army and moving to Germany to live with her. He left the service in August 1979 and returned home. His father and the sheriff paid for him to fly back to Germany and be with his future wife who was pregnant with his son at the time. While in Germany, his wife worked, and he stayed home to care for their son. He could not get help with his psychological problems because he was not earning any money and had no health benefits. After 17 years, they broke up and he returned to the United States. c. He was imprisoned in 1989 and again in 1995. The only time he received psychological help was in prison and it was there that he learned that the Army failed him by not giving him assistance with his sexual assault. He would have received a better discharge if he had received treatment. 3. The applicant enlisted in the Regular Army on 25 January 1977 for a period of four years. He completed training with award of military occupational specialty 63B (Light Wheeled Vehicle Mechanic). 4. The applicant received nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 6 April 1977, for sleeping on guard duty on or about 4 April 1977. 5. He was assigned to a unit in Germany and arrived on or about 30 May 1977. 6. The applicant received NJP, under the provisions of Article 15 of the UCMJ, for the indicated offenses on: * 16 March 1978, for failing to go at the time prescribed to his appointed place of duty, on or about 11 March 1978; being derelict in the performance of his duty by falling asleep on guard duty on or about 12 March 1978; his punishment included reduction to E-2 (suspended) * 3 November 1978, for failing to go at the time prescribed to his appointed place of duty, on or about 30 October 1978; reduction to E-2 (suspended) * 13 March 1979, for failing to go at the time prescribed to his appointed place of duty, twice on or about 5 March 1979 and once on or about 6 March 1979 7. The applicant underwent a pre-separation medical examination on 15 March 1979 and was determined to be qualified for separation. 8. A bar to reenlistment was imposed upon the applicant on 22 March 1979. His commander stated he had consistently been a marginal Soldier who had not shown any initiative or responsibility commensurate with his rank. He demonstrated little motivation and required constant supervision in performing his duties. In addition to his misconduct, he had four letters of indebtedness from the same company and had required written counseling prior to paying his just debts. His retention in service would not benefit the Army in any way. 9. The applicant received NJP, under the provisions of Article 15 of the UCMJ, on the following dates for the indicated offenses on: * 12 April 1979, for being absent without leave (AWOL) from on or about 27 March 1979 to 28 March 1979; his punishment included reduction to E-1 (suspended) * 29 June 1979, for failing to go at the time prescribed to his appointed place of duty, on or about 9 June 1979 and on or about 10 June 1979; his punishment included reduction to E-1, forfeiture of $97.00 pay, and extra duty 10. On 18 July 1979, the applicant's immediate commander notified the applicant that he was initiating actions to separate him from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-37 (Expeditious Discharge Program (EDP)), with an under honorable conditions (general) discharge. As reasons for the proposed separation, the commander cited his demonstrated inability or unwillingness to meet minimum standards required of enlisted personnel. More specifically, he had been counseled on numerous occasions by his supervisors on the standards expected and the actions that he must initiate to meet those standards. His habitual failure to be at the designated place at the designated time showed a lack of motivation that was far below acceptable standards. This lack of motivation had also carried over into his financial affairs. He had consistently failed to pay his debts in a timely manner or written checks without sufficient funds for payment. He advised the applicant he had the right to decline this discharge but, if he declined and his subsequent conduct indicated that such action was warranted, he could be subject to disciplinary or administrative separation. 11. The applicant acknowledged receipt of the separation notification. He was advised of the rights available to him and the effect of waiving his rights. He voluntarily consented to the separation and elected not to submit any statements in his own behalf. 12. The applicant's commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, paragraph 5-37. The separation authority approved the recommended action on 19 July 1979 and directed the issuance of a DD Form 257A (General Discharge Certificate). 13. The applicant was discharged on 14 August 1979. His DD Form 214 (Report of Separation from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31, by reason of EDP – failure to maintain acceptable standards for retention. His service was characterized as under honorable conditions (general). He was credited with 2 years, 6 months, and 6 days of net active service. He had 14 days of lost time. 14. The applicant petitioned the ABCMR for an upgrade of his discharge. On 23 March 2021, the applicant was informed that the Board considered his application under procedures established by the Secretary of the Army and denied his application. 15. 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. 16. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under honorable conditions (general) discharge to an honorable discharge. He contends PTSD mitigates his discharge. A previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) occurred on 5 August 2020 b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * Applicant enlisted in the RA on 25 January 1977. * Applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice: * 6 April 1977, for sleeping on guard duty on or about 4 April 1977 * 16 March 1978, for failing to go at the time prescribed to his appointed place of duty, on or about 11 March 1978; being derelict in the performance of his duty by falling asleep on guard duty on or about 12 March 1978 * 3 November 1978, for failing to go at the time prescribed to his appointed place of duty, on or about 30 October 1978 * 13 March 1979, for failing to go at the time prescribed to his appointed place of duty, twice on or about 5 March 1979 and once on or about 6 March 1979 * 12 April 1979, for being absent without leave (AWOL) from on or about 27 March 1979 to 28 March 1979; * 29 June 1979, for failing to go at the time prescribed to his appointed place of duty, on or about 9 June 1979 and on or about 10 June 1979 * A bar to reenlistment was imposed upon the applicant on 22 March 1979. His commander stated he had consistently been a marginal Soldier who had not shown any initiative or responsibility commensurate with his rank. He demonstrated little motivation and required constant supervision in performing his duties. In addition to his misconduct, he had four letters of indebtedness from the same company and had required written counseling prior to paying his just debts. * The applicant was discharged on 14 August 1979. His DD Form 214 (Report of Separation from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31, by reason of EDP – failure to maintain acceptable standards for retention. His service was characterized as under honorable conditions (general). c. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 293, DD Form 149, his ABCMR Record of Proceedings (ROP), DD Form 214, self-authored affidavits, and documents from his service record and separation packet. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant reports being imprisoned in 1989 and once again in 1995 for murder. He currently remains incarcerated. Per the applicant, he joined the Army in 1977 under duress from the county sheriff and his father who had him locked up in the county jail. Prior to military service, the applicant reports that while in the county jail, he was sexually assaulted by older prisoners. Per the applicant, his father was running for County Supervisor and the Sheriff was running for reelection, so they conspired to cover up his sexual assault by keeping him out of school and making him join the military. The sheriff later informed him that if he told anyone what happened and returned to Mississippi, he would put him in state prison. Once in the Army, the applicant reports not receiving any treatment for the traumatic experience because he was too ashamed to talk about what happened to him. He did share what happened to him with his motor sergeant, who advised him to keep it to himself because if the story spread amongst his fellow soldiers, it would be difficult to live in the barracks. He reports receiving psychological help in prison. e. Due to the period of service, no active-duty electronic medical records were available for review and the applicant did not submit any medical documentation for review. Applicant is not service connected and there are no VA electronic medical records (JLV) available for review. In addition, no medical documentation post-military service substantiating his assertion of PTSD were submitted for review. f. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence that the applicant had a behavioral health condition during military service that would mitigate his discharge. 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 asserts a mitigating condition. (2) Did the condition exist or experience occur during military service? No. The applicant reports experiencing a traumatic incident prior to military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. While the applicant asserts a pre-enlistment traumatic sexual assault, there is no evidence of any traumatic in-service incident or indication that military service exacerbated a pre-existing condition or trauma. In addition, no medical documentation is available to substantiate any behavioral health condition or diagnosis. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's behavioral health claim and the review and conclusions of the ARBA BH Advisor. The applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by a behavioral health condition. Based on a preponderance of evidence, the Board determined 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20170018308 on 5 August 2020. 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 (USC), 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 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. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the 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. Paragraph 5-31 provided for the discharge of enlisted personnel who had completed at least 6 months but less than 36 months of active duty and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. No individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge. Individuals discharged under this provision of the regulation were issued either a general or honorable discharge. 5. 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 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 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. 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 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. 7. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service DRBs and Service 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) AR20230001275 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1