IN THE CASE OF: BOARD DATE: 6 December 2023 DOCKET NUMBER: AR20230005932 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * A personal statement * A third-party letter of support * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs Rating Decision 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 enlisted at the age of 18 and was a young kid fresh out of high school. He finished his training in November 2002. In December 2002, he was sent to Germany. In February of 2003 he was raped by a male noncommissioned officer that lived at the barracks he was staying. This affected his mental health. He was terrified to say anything and kept it to himself. He was afraid to say anything about it, so he openly began to tell his command he no longer wanted to serve. He kept it to himself until almost 17 years after the fact. This assault has affected him ever since resulting in him gaining weight, becoming depressed, and abusing alcohol. It has taken him years to finally feel his type of discharge was unfair. 3. On the applicant's DD Form 149, he indicates post-traumatic stress disorder (PTSD) and sexual assault / harassment as contributing and mitigating factors in the circumstances that resulted in his separation. 4. The applicant enlisted in the Regular Army on 2 July 2002, for 4 years. He completed training and he was awarded of the military occupational specialty 31L (Wire Systems Installer). The highest grade he held was E-2. 5. The applicant was formally counseled on four occasions for failure to meet weight standards and failure of the Army Physical Fitness Test (APFT). 6. A DA Form 3822-R (Report of Mental Status Evaluation), dated 2 September 2003, shows the applicant had no abnormalities in behavior, level of orientation, mood, thinking process, thought content, or memory. He was determined to be mentally capable to understand and participate in the proceedings deemed appropriate by command. 7. The applicant was afforded a Medical Examination 5 September 2003 that found no physical abnormalities and cleared him for separation. 8. The applicant's immediate commander notified the applicant, on 13 November 2003, of his recommendation to discharge him under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 13 for unsatisfactory performance. 9. The applicant consulted with legal counsel on 17 November 2003. He was advised of the basis for the contemplated discharge, the possible effects of an under honorable conditions discharge, and the procedures and rights that were available to him. He waived his administrative rights and elected not to submit a statement in his own behalf. He understood that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He understood further that he may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading, however, he realized that an act of consideration by either Board did not imply that his discharge would be upgraded. 10. On 18 November 2003, the applicant's immediate commander formally recommended that the applicant be separated from service under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance. The commander recommended he receive an honorable discharge. 11. In a 19 November 2003 legal review it was noted: a. The evidence was sufficient to support the separation recommendation. b. On divers counseling statements, the Soldier stated the reason for his poor APFT performance was his desire to get out of the Army and he had no desire to pass the APFT. c. The record was unclear on his overall duty performance. If his APFT failures were intentional to facilitate separation that factor would be fairly considered in determining his characterization of service. 12. The appropriate authority approved the discharge recommendation on 24 November 2003 under the provisions of Army Regulation 635-200, paragraph 13-2e, for unsatisfactory performance and directed his service be characterized as general, under honorable conditions. 13. The applicant was discharged on 7 January 2004, in the pay grade of E-2. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635- 200, paragraph 13-2e for (failure of) Physical Standards with an under honorable conditions (general) character of service, a Separation Code of JFT and a Reentry Code of 3. He was credited with 1 year, 6 months, and 6 days of net active service. His awards are listed as the National Defense Service Medal and the Army Service Ribbon. 14. A review of the records at the Department of the Army Criminal Investigation, Division Crime Records Center failed to reveal any records pertaining to the applicant and any military sexual trauma. 15. The applicant provided: a. In a third-party letter of support from a fellow Solider in which the Soldier described the changes he observed in the applicant after only few months on station, going from happy and very dutiful to being so unhappy and anxious that he couldn't even sleep. The applicant was a good guy, and all of his fellow Soldiers liked him. Even when he was in so much turmoil, the applicant always carried his weight and then some to help accomplish the mission. Many years later they reconnected, and the applicant related to him the attack and what had caused his change. b. A VA Rating Decision, dated 24 September 2020, granted the applicant service connection for post-traumatic stress disorder (PTSD) with other psychoactive substance related disorder at 100 percent. 15. In determining whether to grant relief the Boards for Correction of Military/Navy Records (BCM/NR) 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 applicant is applying to the ABCMR requesting his under honorable conditions (general) discharge be upgraded. He contends that he experienced military sexual trauma (MST) and resultant PTSD that mitigates his discharge. 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 Regular Army on 2 July 2002; 2) The applicant was formally counseled on four occasions for failure to meet weight standards and failure of the Army Physical Fitness Test (APFT); 3) The applicant was discharged on 7 January 2004, Chapter 13-2e for (failure of) Physical Standards with an under honorable conditions (general) character of service. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) and hardcopy VA documentation provided by the applicant were also reviewed. d. The applicant asserts he experienced MST and resultant PTSD, while on active service. He stated his experience of MST and resultant mental health condition negatively impacted him military performance and his desire to remain in active service. There is evidence the applicant reported symptoms of depression July 2003 to behavioral health services at Heidelberg, Germany. There is evidence he attended stress management classes and was reporting difficulty with managing symptoms of depression and military responsibilities. He was later seen for a Mental Status Examination on 2 September 2003, as part of his separation proceedings. He was not diagnosed with a mental health condition and was cleared to participate in proceedings deemed appropriate by command. A review of JLV provided evidence the applicant has been diagnosed with service-connected PTSD as the result of MST. He was found to be 100% disabled for this condition in 2019 e. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence to support the applicant had condition or experience that mitigated his discharge. Also, in accordance with the liberal consideration memo, the applicant’s contention of MST and/or mental health condition alone is sufficient to be considered by the board in reaching its final determination. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing symptoms of PTSD related to his experience of MST that contributed to his discharge. There is sufficient evidence the applicant experienced mental health symptoms while on active service, and there is sufficient evidence the applicant has been diagnosed with service- connected PTSD as the result of his report of MST. (2) Did the condition exist or experience occur during military service? Yes, the applicant contends he was experiencing symptoms of PTSD related to his experience of MST that contributed to his discharge. There is sufficient evidence the applicant experienced mental health symptoms while on active service, and there is sufficient evidence the applicant has been diagnosed with service-connected PTSD as the result of his report of MST. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes, the applicant contends he was experiencing symptoms of PTSD related to his experience of MST that contributed to his discharge. There is sufficient evidence the applicant experienced mental health symptoms while on active service, and there is sufficient evidence the applicant has been later been diagnosed with service-connected PTSD by the VA as the result of his report of MST. Therefore, there is sufficient evidence to support the applicant had condition or experience that mitigated his repeated failure of the APFT and height and weight standards, and it is recommended his discharge be upgraded and the narrative reason for his separation be amended to Secretarial Authority. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not 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. Upon review of the applicant’s petition, available military records and medical review, the Board considered the advising official finding sufficient evidence to support the applicant had condition or experience that mitigated his discharge. In addition to sufficient evidence the applicant experienced mental health symptoms while on active service, and there is sufficient evidence the applicant has been diagnosed with service-connected PTSD as the result of his report of MST. 2. The Board understands many sexual assault victims do not report. However, when prepondering evidence, there are sometimes symptoms of MST displayed by victims prior to their separation. Personal MST statements provided to the VA are not always corroborated. The Board noted in the applicant’s record counseling that reflected the applicant had issues at home. Consideration was carefully give to the support letter provided by the applicant and his self-authored statement where he contends he experienced symptoms of PTSD related to his experience of MST that contributed to his discharge. The Board found beyond the applicant’s the self-attestation, there is insufficient evidence of in-service mitigation to overcome the unsatisfactory performance. The Board notwithstanding the medical opine recommendation, found by the applicant’s own admission reason that his poor APFT performance was his desire to get out of the Army and he had no desire to pass the APFT. 3. The Board recognized the applicant was discharged for unsatisfactory performance and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. Further, evidence in the record at the time of separation, documentation supports the narrative reason for separation properly identified on the DD Form 214. Based on the preponderance of evidence and the applicant’s own admission of not wanting to be in the military, the Board determined relief is without merit and denied relief. 4. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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: Except for the correction addressed in Administrative Note(s) below, the Board found 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214, for the period ending 7 January 2004 is missing important entry that does not require Board action. As a result, amend the DD Form 214 by adding the following the Global War on Terrorism Service Medal to the entries at item 13 (Decoration, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized). 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 (Army Board for Correction of Military Records) 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. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 13 provides that a Soldier may be separated when it is determined that he/she is unqualified for further military service because of unsatisfactory performance; when in the commander's judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier; the seriousness of the circumstances is such that the Soldier's retention will have an adverse impact on military discipline, good order, and morale; the Soldier will likely be a disruptive influence in duty assignments; the circumstances forming the basis for initiation of separation proceedings will likely continue or recur; the Soldier's ability to perform duties effectively is unlikely; and/or the Soldier's potential for advancement or leadership is unlikely. d. Paragraph 13-2e states initiation of separation proceedings is required for Soldiers without medical limitations who have two consecutive failures of the Army physical fitness test. 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 (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 a 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 DRBs and BCM/NR 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. 6. 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.) AR20230005932 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1