IN THE CASE OF: BOARD DATE: 22 November 2023 DOCKET NUMBER: AR20230003341 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions (general). Additionally, he requests a personal appearance before the Board. 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 during basic training, he was harassed by several individuals. It got progressively worse as time went on. By the time he got to advanced individual training it was unbearable, and he feared for his own personal safety. He felt he had no choice but to leave. He has suffered from depression and substance abuse because of actions towards him while he was in the service. He had heart failure in 2021 and told his wife everything, so now he is telling the military. 3. On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD), sexual assault/harassment, and traumatic brain injury (TBI) as contributing and mitigating factors in the circumstances that resulted in his separation. 4. The applicant enlisted in the Regular Army on 25 September 1979, for 3 years. His record shows he was not awarded a military occupational specialty. 5. On 31 January 1980, the applicant was reported as absent without leave (AWOL) and remained absent until he surrendered to military authorities on 17 June 1980. 6. Court-martial charges were preferred against the applicant on 19 June 1980, for violation of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with one specification of going AWOL from on or about 31 January 1980 until on or about 17 June 1980. 7. On 20 June 1980, the applicant underwent a mental status evaluation. He was psychiatrically cleared to participate in any administrative action deemed appropriate by the command. 8. On 20 June 1980, the applicant consulted with legal counsel 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 a bad conduct discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a Veteran under both Federal and State laws. b. He declined to submit a statement in his own behalf. 9. On 2 July 1980, the applicant's commander recommended approval of the applicant's request for discharge, and further recommended the issuance of an UOTHC discharge. 10. Consistent with the chain of command’s recommendations, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial on 9 July 1980, and directed his separation with an UOTHC Discharge Certificate. 11. The applicant was discharged on 25 July 1980. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for administrative discharge conduct triable by a court-martial. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He was assigned Separation Code JFS and Reenlistment Codes 3 and 3B. He completed 5 months and 7 days of net active service this period with 144 days of lost time. 12. In the processing of this case, a search of the Criminal Investigation Division database was requested for a Report of Investigation and/or Military Police Report pertaining to the applicant. The search revealed no records pertaining to the applicant. 13. On 13 May 2023, the ABCMR staff requested the applicant provide medical documents to support his mental health issue of PTSD and TBI. He was advised that he could contact the doctor that diagnosed him or his Veterans Affairs regional office for assistance. He did not respond. 14. 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. 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. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's available records in the Interactive Personnel Electronic Records Management System (iPERMS), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant requests for his Under Other Than Honorable Conditions to be changed to Under Honorable Conditions (General). He indicated in his application, that his request was related to PTSD, TBI and Sexual Assault/Harassment conditions. He stated that the harassment he endured was unbearable and caused him to leave without authorization. He further stated that he suffered from depression and substance abuse. b. The applicant’s record was summarized in the ABCMR ROP. Of note, the applicant entered service 25Sep1979. His primary MOS was 67N00 Utility Helicopter Repairer Trainee. The DD Form 214 did not show foreign service. He was discharged on 25Jul1980 under provisions of AR 635-200 chapter 10 in lieu of trial by court-martial. He was pending court-martial for being AWOL from on or about 31Jan1980 to 17Jun1980. His service was characterized as Under Other Than Honorable Conditions. c. 20Jun1980 Report of Mental Status Evaluation did not reveal any significant mental illness. The psychiatric examination did not show any abnormalities. He was determined to be mentally responsible, and able to distinguish right from wrong. There were no other service medical records available for review. d. JLV search did not reveal a behavioral health (BH) diagnosis. JLV search today showed the first note was in 2023 with homelessness as the primary focus. The applicant also endorsed a depressed mood and significant medical issues to include congestive heart failure and chronic obstructive pulmonary disease. e. Concerning the 03Sep2014 Secretary of Defense Liberal Guidance Memorandum and the 25Aug2017 Clarifying Guidance, evidence did not reveal a boardable BH diagnosis at the time of his discharge; however, under Liberal Consideration guidance the applicant’s self-assertion of PTSD and MST is sufficient for consideration for a discharge upgrade by the Board. Recommend upgrade from ‘Under Other Than Honorable Conditions’ to fully ‘Honorable’ and change in narrative reason for discharge to ‘Secretarial Authority’. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. Although there is no documented evidence showing a behavioral health diagnosis, as per ARBA policy, the applicant’s self-assertion of PTSD and MST is sufficient for consideration for a discharge upgrade and change in narrative reason for discharge. (2) Did the condition exist, or did the experience occur during military service? Yes. As per ARBA policy, the applicant’s self-assertion of PTSD and MST as reported to be due to in-service trauma, is sufficient to affirm its existence while in service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant’s decision to leave without authorization is consistent with an avoidance reaction to trauma. In addition, substance use is a common sequela of PTSD and MST. BOARD DISCUSSION: 1. 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 record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. One potential outcome was to deny relief based on the applicant’s AWOL and insufficient evidence to support his contentions of a traumatic brain injury; board member found his discharge appropriate. However, upon review of the applicant’s petition, available military records and medical review, the Board partially concurred with the advising official finding evidence did not reveal a boardable BH diagnosis at the time of his discharge; however, under Liberal Consideration guidance the applicant’s self-assertion of PTSD and MST is sufficient for consideration for a discharge upgrade. 2. The Board agreed, the evidence of record shows, at the time of separation, documentation supports the narrative reason for separation properly identified on the DD Form 214. As such, the Board determined under liberal consideration changes to the applicant’s narrative reason are not warranted. However, the Board determined based on the medical opine, there is sufficient evidence to affirm there was in-service trauma. The Board determined an upgrade to general, under honorable condition is appropriate. Therefore, the Board granted relief to upgrade the applicant’s discharge to general, under honorable conditions. 3. 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. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : xx xx GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING xx : : DENY APPLICATION ? 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 reissuing the applicant a DD Form 214 showing his characterization of service as general, under honorable conditions. 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. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the 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. 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. a. Paragraph 2-9 states 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. 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. 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. 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. c. Chapter 10 provided 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, a UOTHC discharge was normally considered appropriate. 5. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Navy Records (BCM/NR) on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, TBI, sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the mental health condition was not diagnosed until years later. 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. 6. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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 on the basis of 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003341 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1