IN THE CASE OF: BOARD DATE: 21 September 2023 DOCKET NUMBER: AR20230001494 APPLICANT REQUESTS: * upgrade of his characterization of service from under other than honorable conditions to honorable * change the narrative reason for separation from misconduct (serious offense) to Secretarial authority APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), 31 October 2022 * legal counsel brief, date unknown * Exhibit 1 - DD Form 214 (Certificate of Release or Discharge from Active Duty), 3 October 2002 * Exhibit 2 – * Honorable Discharge Certificate, Army National Guard, 30 April 2003 * Orders 009-1075, Texas Army National Guard, 9 January 2004 * Exhibit 3 – DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), 1 May 2003 * Exhibit 4 – DD Form 4, Immediate Reenlistment, 9 February 2005 * DA Form 3286 (Statement for Enlistment), 9 February 2005 * DA Form 4787 (Statement of Enlistment to Selective Reenlistment Bonus), 9 February 2005 * DA Form 3340-R (Request for Reenlistment of Extension in the Regular Army, 9 February 2005 * Exhibit 5 – DD Form 214, 26 October 2006 * Exhibit 6 – * seven (7) DA Forms 4856 (Developmental Counseling Form), 27 October 2005 to 30 January 2006 * Criminal Investigation Division (CID) Report of Investigation (ROI), 4 May 2006 * Exhibit 7 –legal packet * DA Form 2627 (Summarized Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ), 11 December 2005 * Warrior Legal Center Legal Action Form, undated * eight (8) DA Forms 4187 (Personnel Action), from 8 February 2006 to 17 October 2006 * Exhibits 8/9 – Memorandum, Subject: Separation under Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel), Chapter 14, Paragraph 14-12c (Commission of a Serious Offense, Commander notification, 5 September 2006 * Exhibit 10 – Memorandum, Subject: Separation under AR 635-200, Chapter 14, Paragraph 14-12c, Applicant, 5 September 2006 * Exhibit 11 – Memorandum, Subject: Separation under AR 635-200, Chapter 14, Paragraph 14-12c, Commander recommendation, 18 September 2006 * Exhibit 12 – Memorandum, Subject: Separation under AR 635-200, Chapter 14, Paragraph 14-12c, Intermediate Commander recommendation, 22 September 2006 * Exhibit 13 – Memorandum, Subject: Separation under AR 635-200, Chapter 14, Paragraph 14-12c, Separation Authority, 13 October 2006 * Exhibit 14 – * Letter, Army Discharge Review Board (ADRB), 16 June 2011 * ADRB Docket Number AR20100024289, 3 June 2011 * Exhibit 15 – Standard Form 600 (Chronological Record of Medical Care, 27 June 2006 * Exhibit 16 – character reference, (Aunt), 22 March 2022 * Exhibit 17 – character reference, (Friend), date unknown * Exhibit 18 – two (2) character reference, (Friend), 29 March 2022 and (Cousin), 23 March 2022 * Exhibit 19 – character reference, author unknown, date unknown 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 defers to his counsel's legal brief and exhibits for request for upgrade of his discharge characterization. 3. The applicant's legal counsel provided a 7 page legal brief which is available for the Board to review in full in the supporting documents/evidence file. The following is a summary of counsel's legal brief: a. Counsel briefly addresses the applicant's previous honorable service in the Army National Guard, prior to his enlistment in the Regular Army, and they earliest parts of his enlistment in the Regular Army, to include nonjudicial punishment the applicant received for 5 violations of failure to report. b. Counsel addresses the events leading to the applicant's arrest by civilian authorities, he was charged with sexual assault under a State Penal Code and held in jail awaiting trial, and the separation proceedings conducted by the Army resulting in the applicant's Discharge with an under other than honorable conditions character of service. The narrative reason for his discharge was misconduct (serious offense) and he was given a separation code of JKQ. He served 3 years, 5 months, and 26 days of active duty. c. Counsel notes the applicant previously applied for a discharge upgrade from the ADRB, however, that Board ultimately denied his requested relief. d. Counsel asserts that the applicant is seeking upgrade of his discharge for reasons of propriety and equity and states an "error of discretion was made in discharging the applicant other than honorable". Stating one incident should not define the service of an honorable Soldier. He has been improperly stigmatized and harmed by his discharge status and has been robbed of his good name. It injures his economic and social potential as a member of the general community. Counsel acknowledges the seriousness of the offense and states the applicant served 2 years' time for his mistake following his trial. e. Counsel states the applicant was diagnosed with Post-Traumatic Stress Disorder (PTSD) and depression following his tour in Iraq. His PTSD and depression led to substance abuse problems, and while not an excuse for the allegations, he was drunk at the time of the incident. f. Counsel argues that the applicant was punished by civilian authorities and therefore the extra punishment of receiving an other than honorable discharge was an error of discretion, in light of the applicant’s overall equity of service, including foreign service. His PTSD diagnosis was a mitigating factor in his misconduct due to self- medicating with alcohol at the time; this is sufficient to warrant an upgrade of his discharge. 4. The applicant enlisted in the Army National Guard of Texas on 15 March 2001 and served for 2 years, 1 month, and 16 days. He enlisted in the Regular Army on 1 May 2003 and executed an immediate reenlistment on 9 February 2005. 5. His Enlisted Record Brief (ERB) shows the highest rank obtained was the rank/grade of private first class (PFC/E-3) with a date of rank of 10 February 2006. 6. Five (5) DA Forms 4856 (Developmental Counseling Form) shows he was counseled for failing to report to his appointed place of duty on the following dates: * 27 October 2005 * 2 November 2005 * 3 November 2005 * 15 November 2005 * 30 January 2006 7. A DA Form 2627 (Record of Proceedings under Article 15, Uniform Conduct of Military Justice (UCMJ)), shows the applicant accepted nonjudicial punishment under Article 15, UCMJ for the following misconduct: a. In that he, did, at or near Fort Hood, Texas, on or about 15 November 2005, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0700 company accountability formation, which is a violation of Article 86 (Absent without Leave (AWOL) ). b. In that he, did, at or near Fort Hood, Texas, on or about 3 November 2005, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0700 company accountability formation which is a violation of Article 86. c. In that he, did, at or near Fort Hood, Texas, on or about 2 November 2005, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0700 company accountability formation which is a violation of Article 86. d. In that he, did, at or near Fort Hood, Texas, on or about 31 October 2005, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0700 company accountability formation which is a violation of Article 86. e. In that he, did, at or near Fort Hood, Texas, on or about 27 October 2005, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0700 company accountability formation which is a violation of Article 86. 8. A Chronological Record of Medical Care, dated 27 January 2006, states the applicant was seen by medical providers because he was "feeling sick." The listing of problems includes: * Pharyngitis Acute * Sinusitis Acute Empyema * visit for: military services physical * Anxiety Disorder NOS * Chronic Post-Traumatic Stress Disorder * Other Specified Family Circumstances * Adjustment Disorder with Mixed Emotional Features * Insomnia Related to Axis I/II Mental Disorder (Nonorganic) * Adjustment Disorder with Depressed Mood * Assessment Of Patient Condition Work-Related * No Psychiatric Diagnosis or Condition on Axis I * No Psychiatric Diagnosis on Axis Ill * No Psychiatric Diagnosis on Axis II * Adverse Effect of Drug Therapy Analgesics Non-Narcotic * Back Strain Lumbar * Sprain Lumbar 9. On 4 May 2006, the Criminal Investigation Division (CID) released a report of investigation stating the following: a. On 29 January 2006, Ms. , states she was attending a party at the applicant's residence, she claimed he provided her with alcoholic beverages, and she became intoxicated. He escorted her to his bed to lie down and she went to sleep. She woke up to find the applicant having sexual intercourse with her against her will. b. On 30 January 2006, Ms. ., underwent an examination which revealed minor genital bruising. c. On 2 February 2006, the investigator advised the applicant of his legal rights, which he waived, and he admitted to having consensual sexual intercourse with Ms. . d. The applicant was confined to a County Jail awaiting arraignment on 12 May 2006, and he was under investigation for sexual assault. 10. On 5 September 2006, the applicant's immediate commander, recommends action for separation under AR 635-200, chapter 14, paragraph 14-12c (commission of a serious offense) due to the applicant being accused of sexual assault of a minor and providing alcohol to a minor on 29 January 2006, with a recommended discharge of under other than honorable conditions. 11. On 5 September 2006, after being advised by counsel, the applicant executed a written request for discharge under the provisions of AR 635-200, chapter 14, paragraph 14-12c (commission of a serious offense). He acknowledged understanding the following in his request: a. He was subject to a characterization of service under other than honorable conditions. b. He was advised of his rights to submit a conditional waiver of his rights to have his case considered by an administrative separation board. He waived consideration of his case by an administrative separation board. c. He waived a personal appearance before an administrative separation board, he elected not to submit statement(s) on his behalf, and he waived consulting counsel and representation by military counsel and/or civilian counsel at no expense to the government. Further, he understood that willful failure to appear before the administrative separation board by absenting himself without leave would constitute a waiver of his rights to personal appearance before the board. d. He could expect prejudice in civilian life if he received a general discharge under other than honorable conditions. Additionally, as a result of an issuance of a discharge, under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws. 12. On 18 September 2006, the applicant's immediate commander, recommends the applicant be separated under AR 635-200, chapter 14, paragraph 14-12c (commission of a serious offense) and that he be issued an under other than honorable conditions discharge. The commander notes: a. The applicant was accused of sexual assault of a minor and of providing alcohol to a minor on 29 January 2006. He is currently confined at the County Jail awaiting trial on these charges". b. He was given an article 15 on 1 December 2005 for 5 violations of failure to report, he was reduced to private first class and given extra duty for 14 days. c. He was absent without leave from 7 February 2006 thru 16 February 2006, 17 February 2006 thru 23 February 2006, and was confined by civil authorities since 13 April 2006. 13. On 22 September 2006, the applicant’s intermediate commander recommended separation under AR 635-200, chapter 14, paragraph 14-12c (commission of a serious offense) with a separation of under other than honorable conditions. 14. On 13 October 2006, the Deputy Commanding General Support, Brigadier General , approved the applicant's separation under the provisions of AR 635-200, chapter 14, paragraph 14-12c (commission of a serious offense) and directed the applicant be issued an under other than honorable conditions discharge due to determining that the charged misconduct is sufficiently serious to warrant separation and the applicant has no rehabilitative potential. 15. He was discharged on 26 October 2006, under the provisions of AR 635-200, chapter 14-12c, misconduct serious offense, in the rank/grade of PV1/E-1. His service was characterized as under other than honorable conditions. His DD Form 214 reflects his personal decorations earned were Army Commendation Medal, Army Achievement Medal, Army Good Conduct Medal, and it also shows: * item 12c (net active service this period) – 2 years, 9 month, and 21 days * item 26 (separation code) – JKQ * item 27 (reentry code) – 3 * item 29 (dates of time lost during this period) – 7 February 2006 thru 15 February 2006, 17 February 2006 thru 22 February 2006, 7 March 2006 thru 12 April 2006, 13 April 2006 thru 26 October 2006 16. The applicant and his counsel provide four (4) character reference statements, all of which describe the applicant as an honest, selfless, dependable, funny, and friendly person. They say he is a responsible and supportive father to his children and husband to his wife. 17. The ADRB informed the applicant, in a letter dated 16 June 2011, that his request for a discharge upgrade was denied; the ADRB determined he was properly and equitably discharged. 18. Regulatory guidance states when an individual is discharged under the provisions of AR 635-200, chapter 14, for misconduct, an under other than honorable conditions characterization of service is normally appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 19. The applicant provided argument or evidence the Board should consider, along with the applicant's overall record, in accordance with the published equity, injustice, or clemency determination guidance. 20. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his characterization of service from under honorable conditions (general) to honorable and a change to the narrative reason for separation. He contends he had mental health conditions including PTSD that mitigated his misconduct. 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 in the Army National Guard of Texas on 15 March 2001 and then enlisted in the Regular Army on 1 May 2003; 2) The applicant was deployed to Iraq while he was in active service; 3) On 5 September 2006, the applicant's immediate commander, recommended action for separation under AR 635-200, chapter 14, paragraph 14-12c (commission of a serious offense) due to the applicant being accused of sexual assault of a minor and providing alcohol to a minor on 29 January 2006, with a recommended discharge of under other than honorable conditions; 4) The applicant was discharged on 26 October 2006, under the provisions of AR 635-200, chapter 14- 12c, misconduct serious offense. His service was characterized as under other than honorable conditions; 5) The ADRB informed the applicant, in a letter dated 16 June 2011, that his request for a discharge upgrade was denied. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The Armed Forces Health Longitudinal Technology Application (AHLTA) and the VA’s Joint Legacy Viewer (JLV) were also examined. d. The applicant noted depression and PTSD were related to his request, as contributing and mitigating factors in the circumstances that resulted in his separation. There is evidence the applicant was experiencing symptoms of depression, suicidal ideation/behavior, substance abuse, and PTSD after returning from his deployment to Iraq. He was diagnosed with Adjustment Disorder with Depressed mood on 23 November 2005, and he was also prescribed psychiatric medication and recommended for individual behavioral health treatment. In January 2006, he was also diagnosed with Chronic PTSD, and he attended a few sessions of an evidence-based psychotherapy for PTSD. On 23 February 2006, he was seen for acute methamphetamine intoxication and withdrawal. He was recommended for inpatient substance abuse treatment, and on 02 March 2006, he was evaluated for his suitability for inpatient substance abuse treatment. The full results of the evaluation were not available for review. However, there was evidence he was discharged a month later from the inpatient substance abuse treatment program. e. A review of JLV provided evidence the applicant has been diagnosed and treated for Major Depressive Disorder and PTSD since 2017. These conditions were assessed to be attributed to the applicant’s deployment experiences in Iraq. The applicant receives no service-connected disability. f. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he experienced mental health conditions including PTSD that contributed to his misconduct. There is evidence the applicant did engage in behavioral health treatment after his deployment while on active service and after his discharge from the military. He was diagnosed with an Adjustment Disorder and PTSD while on active service, and he was diagnosed with Major Depressive Disorder and PTSD by the VA. (2) Did the condition exist or experience occur during military service? Yes, the applicant contends he experienced mental health conditions including PTSD that contributed to his misconduct while on active service. There is evidence the applicant did engage in behavioral health treatment after his deployment while on active service and after his discharge. He was diagnosed with an Adjustment Disorder and PTSD while on active service, and he was diagnosed with Major Depressive Disorder and PTSD by the VA. (3) Does the condition experience actually excuse or mitigate the discharge? No, there is sufficient evidence the applicant was experiencing deployment related mental health conditions including PTSD while on active service. However, the applicant was found guilty of sexual assault of a minor and providing alcohol to a minor. There is no nexus between these types of misconduct and the applicant’s mental health conditions including PTSD given that: 1) these types of misconduct are not part of the natural history or sequelae of the applicant’s mental health conditions or PTSD; 2) the applicant’s mental health conditions or PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. However, the applicant contends his mental health condition resulted in his misconduct, and per the Liberal Consideration Policy, his contention is sufficient for consideration. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered counsel’s statement, the applicant’s record of service to include deployment, the frequency and nature of the applicant’s misconduct and the reason for the applicant’s separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA Medical Advisor. The Board found the letters of support provided by the applicant insufficient in support of a clemency determination considering the serious nature of his misconduct. 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 PTSD. Based on a preponderance of the evidence, the Board determined the character of service the applicant received upon separation and the reason for his separation were 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 (AR) 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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 used for a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 5-3 (Secretarial plenary authority) states, separation under this paragraph is the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memorandums. d. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. 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 considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 3. 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; TBI; sexual assault; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. 4. 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 regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. 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. 5. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230001494 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1