IN THE CASE OF: BOARD DATE: 24 January 2024 DOCKET NUMBER: AR20230006499 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) characterization of service to under honorable conditions (general). Additionally, he requests an appearance before the Board via video or telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) with self-authored statement * Military Service Records (8 pages), dated 18 March 1976 to 23 August 1977 * DD Form 214 (Report of Separation from Active Duty), for the period ending, 18 October 1977 * Service Treatment Records (16 Pages), dated 18 March 1976 to 7 September 1977 * letter, Army Discharge Review Board (ADRB), dated 30 March 1982 * Certificates and Diplomas (8 pages), dated 18 December 1990 to 30 March 1995 * letter, National Personnel Records Center (NPRC), dated 8 June 2012 * three statements of support, dated 14 December 2022 to 30 January 2023 * letter, St. James Primary Care, dated 27 January 2023 * medication review, dated 1 February 2023 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), 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, in effect: a. The ADRB did not consider the actual events leading up to his discharge. He was having seizures, being bullied by other Soldiers, and was sexually assaulted. After dropping out of high school, he joined the Army for opportunity and in hopes of proving himself. The transition from rural Louisiana to Fort Meade, Maryland, was overwhelming. He was hazed and harassed as the “Country Boy” of the barracks. He tried to fit in but could not shake the harassment. b. The drug problem amongst lower enlisted was a known problem at Fort Meade. The Military Police (MP) and Criminal Investigation Division (CID) tried to stop the flow of drugs by enticing low level drug users to report and trap local and on post drug dealers. Harassed and lonely for friends, he became an occasional drug user to escape stress. He was approached about participating in a buy-bust operation in the barracks. He pulled out because he did not believe the authorities could protect him. A drug dealer threatened him at gun point. His repeated requests for protection were denied. c. Under stress, he had an epileptic seizure which caused him to urinate on himself. It was very public, and he became known as “Piss Boy.” He was told to “man up and drive on.” He continued to have seizures. Although he received medical evaluations at Kimbrough Army Clinic, he never received treatment. d. To get away from the harassment and poor living conditions, he moved into an apartment. When the money ran short, he moved back to the barracks. One night, another Soldier entered his room and sexually assaulted him. The Soldier threatened to kill him if he told anyone. He felt rejected, alone, unprotected, and unwanted. He did not report the incident as he had no faith in the system. e. He was surprised when he received an Article 15 for failure to report. He was told to go find another job. He got no assistance from his first sergeant. He never received any counseling, and his work performance was satisfactory. They wanted him to be gone by any means necessary. He was a victim of the Army. The UOTHC was a gross overreach of justice. He did not receive on-the-job counseling or medical treatment for his condition. No one ever befriended him. The discharge eliminated a problem the military created. f. He had a rough time for a while after his discharge. He self-referred into a drug and alcohol treatment program. He has been clean for over thirty-one years. He went back to school, graduated from truck driving school, and continued in a graphics engineering program. He was the top salesman at a car dealership for many years prior to retirement and volunteers his time to support community projects. He is active in his church and respected in his community. After years of repressing feelings of shame and remorse, he has requested assistance from the Department of Veterans Affairs for Military Sexual Trauma. 3. The applicant enlisted in the Regular Army on 18 March 1976 for a 3-year period. Upon the completion of initial entry training, he was awarded military occupational specialty 94B (Food Service Specialist). The highest rank he attained was private/E-2. 4. The applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 17 June 1976 for unlawfully striking Private J.R. in the mouth with his fist, on or about 17 June 1976. His punishment consisted of forfeiture of $75.00 pay, 14 days of extra duty, and 14 days of restriction. 5. Two DA Forms 4187 (Personnel Actions) show the following changes in the applicant’s duty status: * Present for Duty (PDY) to Absent without Leave (AWOL) on 22 March 1977 * AWOL to PDY on 28 March 1977 6. Court-martial charges were preferred against the applicant on two occasions for violations of the Uniform Code of Military Justice. The relevant DD Forms 458 (Charge Sheet) show the following: a. On 20 April 1977, for being AWOL on or about 22 March 1977 until on or about 28 March 1977, and for wrongfully selling a controlled substance, to wit: 1.544 grams, more or less, of Phencyclidine, on or about 30 December 1976. b. On 24 May 1977, for being disrespectful towards his superior noncommissioned officer (NCO), for willfully disobeying a lawful order from his superior NCO, and for wrongfully communicating a threat to injure to his superior NCO, on or about 18 May 1977. 7. The applicant consulted with legal counsel on 19 August 1977. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a UOTHC discharge, and the procedures and rights that were available to him. b. After receiving legal counsel, he voluntarily requested discharge, for the good of the service, under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged making this request free of coercion. He further acknowledged understanding that if his discharge request were 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 (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his own behalf. He elected not to submit a statement. 8. The applicant's immediate commander recommended approval of the request for discharge for the good of the service and further recommended the issuance of an UOTHC discharge. 9. The applicant’s service record contains a statement, dated 22 August 1977, wherein he states, in effect, he was pressured by a sergeant/E-5 to front drugs for him. With regards to the specifications of disrespect, he was given a medical profile for seizures. The job he was ordered to perform violated his profile and was potentially hazardous to his health. He was once enthusiastic about the Army. After the bad experience of recent months, he would just like to get out and go home. He requested a general discharge as he felt it accurately reflected the nature of his service. 10. The applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 23 August 1977 for two occasions of failure to go at the time prescribed to his appointed place of duty, on or about 17 August 1977 and on or about 18 August 1977. His punishment consisted of forfeiture of $41.00 pay and 14 days of extra duty. 11. The applicant underwent a pre-separation medical examination on 7 September 1977. The relevant Standard Form (SF) 93 (Report of Medical History) and corresponding SF 88 (Report of Medical Examination) shows the applicant reported a history of seizures with seven to eight episodes in the past year. The examining provider determined the applicant was physically qualified for separation. 12. On 22 September 1977, the applicant’s intermediate commander recommended approval of the applicant’s request for discharge for the good of the service with a UOTHC discharge. 13. The separation authority approved the applicant's request for discharge on 13 October 1977 and directed the issuance of a DD Form 794 (UOTHC Discharge Certificate). 14. Accordingly, the applicant was discharged on 18 October 1977, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. His DD Form 214 confirms his service was characterized as UOTHC, with separation code JFS and reenlistment code RE-3. He was credited with 1 year, 6 months, and 25 days of net active service, with lost time from 22 March 1977 to 27 March 1977. 15. The Army Discharge Review Board reviewed the applicant’s request for an upgrade of his characterization of service on or about 30 March 1982. After careful consideration, the Board determined the applicant was properly discharged and subsequently denied his request. 16. The applicant provides the following: a. Eight pages of military service records, dated 18 March 1976 to 23 August 1977, are outlined in the Record of Proceedings (ROP) above. b. 16 pages of service treatment records, dated 18 March 1976 to 7 September 1977, which show the applicant was referred for a brain scan due to seizures on 2 October 1976. An additional consultation sheet, dated 7 September 1977, shows the applicant was referred to neurology for evaluation and final diagnosis prior to separation. c. A letter from the ADRB, dated 30 March 1982, also discussed in the ROP above. d. Eight certificates and diplomas, dated 18 December 1990 to 30 March 1995, outline several of the applicant’s post service accomplishments to include continuing education and volunteerism. e. A letter from the National Personnel Records Center (NPRC), dated 8 June 2012, provides a response to his request for a copy of his Official Military Personnel File (OMPF). f. In three statements of support from two co-workers and his pastor, the authors state, in effect, the applicant is a respectful individual. He possesses morals and integrity in his dealings with the community. He is an outstanding, law-abiding citizen, who is always willing to lend a hand. g. A letter from, St. James Primary Care, dated 27 January 2023, Family Nurse Practitioner states, the applicant has been seen at the practice since 2012. His history states he has been an epileptic with grand mal seizures since the 1980s. h. A copy of his medication review, dated 1 February 2023, shows a list of his current medications. 17. Administrative separations under the provisions of Army Regulation 635-200, Chapter 10 are voluntary requests for discharge for the good of the service, in lieu of trial by court-martial. An UOTHC character of service is normally considered appropriate. 18. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 19. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under other than honorable conditions (UOTHC) characterization of service to under honorable conditions (general). Additionally, he requests an appearance before the Board via video or telephone. He contends other mental health condition and MST mitigate his discharge. 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 18 March 1976. * Applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 17 June 1976 for unlawfully striking Private in the mouth with his fist, on or about 17 June 1976. * Court-martial charges were preferred against the applicant on two occasions for violations of the Uniform Code of Military Justice. The relevant DD Forms 458 (Charge Sheet) show the following: * On 20 April 1977, for being AWOL on or about 22 March 1977 until on or about 28 March 1977, and for wrongfully selling a controlled substance, to wit: 1.544 grams, more or less, of Phencyclidine, on or about 30 December 1976. * On 24 May 1977, for being disrespectful towards his superior noncommissioned officer (NCO), for willfully disobeying a lawful order from his superior NCO, and for wrongfully communicating a threat to injure his superior NCO, on or about 18 May 1977. * Applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 23 August 1977 for two occasions of failure to go at the time prescribed to his appointed place of duty, on or about 17 August 1977 and on or about 18 August 1977. * Applicant was discharged on 18 October 1977, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. His DD Form 214 confirms his service was characterized as UOTHC, with separation code JFS and reenlistment code RE-3. * The Army Discharge Review Board reviewed the applicant’s request for an upgrade of his characterization of service on or about 30 March 1982. The Board denied his request. c. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, his ABCMR Record of Proceedings (ROP), DD Form 214, self-authored letter, medical documentation, three statements of support, 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 states he was having seizures, being bullied by other soldiers, and was sexually assaulted while in military service. He reports joining the Army for opportunity and in hopes of proving himself. The transition from rural Louisiana to Fort Meade, Maryland, was overwhelming. He was hazed and harassed as the “Country Boy” of the barracks. He tried to fit in but could not shake the harassment; lonely for friends, he became an occasional drug user to escape stress. He was approached about participating in a buy-bust operation in the barracks but pulled out because he did not believe the authorities could protect him. A drug dealer threatened him at gun point and his repeated requests for protection were denied. Under stress, he had an epileptic seizure which caused him to urinate on himself. It was very public, and he became known as “Piss Boy.” He was told to “man up and drive on.” He continued to have seizures. Although he received medical evaluations at Kimbrough Army Clinic, he never received treatment. One night, another soldier entered his room and sexually assaulted him. The soldier threatened to kill him if he told anyone. He felt rejected, alone, unprotected, and unwanted. He did not report the incident, as he had no faith in the system. He was surprised when he received an Article 15 for failure to report. He was told to go find another job. He got no assistance from his first sergeant. He never received any counseling, and his work performance was satisfactory. They wanted him to be gone by any means necessary. He was a victim of the Army. The UOTHC was a gross overreach of justice. He did not receive on-the-job counseling or medical treatment for his condition. No one ever befriended him. The discharge eliminated a problem the military created. After years of repressing feelings of shame and remorse, he has requested assistance from the Department of Veterans Affairs for Military Sexual Trauma. e. The applicant’s time in service predates use of electronic health records (EHR) by the Army, hence no EHRs are available for review. However, the applicant submitted service treatment records, dated 18 March 1976 to 7 September 1977. An entrance medical report, dated 18 March 1976, indicates the applicant was in good health. However, the applicant was referred for a brain scan on 2 October 1976 due to grand mal seizures. An additional consultation sheet, dated 7 September 1977, shows the applicant was referred to neurology for an evaluation and final diagnosis prior to separation. The applicant underwent a pre-separation medical examination on 7 September 1977, the documentation indicates the applicant reported a history of seven to eight episodes of seizures within the year. However, the examining provider determined the applicant was physically qualified for separation. f. Applicant is not service-connected, likely due to the characterization of his discharge. However, the applicant submitted a letter from a civilian medical provider, dated 27 January 2023, indicating the applicant has been seen at the practice since 2012. His medical history shows he has been treated for epilepsy/grand mal seizures since 1980. The VA electronic record indicates the applicant screened positive for MST on 28 April 2023 and requested a referral for MST-related services. He was diagnosed with Anxiety Disorder, Unspecified, and provided with a referral for MST-related resources and coordination of mental health services. On 12 May 2023, the applicant was referred to the outpatient PTSD Clinical Team for treatment including psychotherapy and/or medication management. The applicant participated in an in- depth intake session, on 24 October 2023, he reported during this encounter that while in the military someone he worked with sexually assaulted him. The perpetrator, a large and muscular man, grabbed him by the throat and attempted to force him to perform oral sex on him. The applicant stated the other soldier threatened to kill the applicant if he told anyone. This event was identified as the index traumatic stressor for the purposed of identifying symptoms of PTSD. g. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is sufficient evidence the applicant had an experience (MST) during military service that would partially mitigate his discharge. In addition, the Board should also consider a referral to the IDES process given the applicant’s presentation of a disqualifying medical condition, epilepsy, that presented while in military service with seven to eight grand mal seizures and two to three hospitalizations related to his seizures in the year prior to 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? Yes. The applicant reports experiencing MST during military service and there is evidence in the medical record of ongoing seizures during service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The applicant contends that he was sexually assaulted while in military service and, although he is not service connected, there is indication of a subsequent behavioral health condition; Anxiety Disorder, Unspecified. While it is unclear whether the identified behavioral health condition was present during military service, his contention of a behavioral health condition will be accepted in this opine. The applicant’s AWOL and two occasions of failure to go at the time prescribed to his appointed place of duty are mitigated by his behavioral health condition since there is a natural sequela between MST/Anxiety and avoidance. In addition, given the nexus between MST/Anxiety and difficulty with authority, his being disrespectful towards his superior noncommissioned officer (NCO) and willfully disobeying a lawful order from his superior NCO are mitigated. However, the wrongful sale of a controlled substance, unlawfully striking another soldier, and wrongfully communicating a threat to injure his superior NCO are not mitigated by any of his behavioral health conditions including, MST and Anxiety Disorder. These behaviors do not have a nexus and are not part of the natural sequelae of MST or anxiety disorder. In addition, none of his behavioral health conditions impact his ability to distinguish right from wrong and act in accordance with the right. However, the applicant’s unmitigated misconduct appear to be outweighed by his experience of MST and ongoing medical issues related to his seizure disorder. In accordance with the ARBA policy regarding MST and liberal consideration, it is recommended the applicant’s character of service be upgraded to Honorable and his narrative reason be changed 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. One potential outcome was to grant partial relief to refer the applicant’s case to IDES to evaluate the applicant’s seizures. However, upon review of the applicant’s petition, available military records and medical review, the Board considered the advising official finding sufficient evidence the applicant had an experience (MST) during military service that would partially mitigate his discharge. In addition, the Board should also consider a referral to the IDES process given the applicant’s presentation of a disqualifying medical condition, epilepsy, that presented while in military service with seven to eight grand mal seizures and two to three hospitalizations related to his seizures in the year prior to his discharge. 2. The Board noted the opine that given the nexus between MST/Anxiety and difficulty with authority, his being disrespectful towards his superior noncommissioned officer (NCO) and willfully disobeying a lawful order from his superior NCO are mitigated. The Board considered the applicant’s post service accomplishments of graduating from college and his compelling character letters of support attesting to his character, integrity and his extensive community involvement of giving back. The Board however, found based on the preponderance of evidence there is insufficient evidence of in- service mitigating factors to overcome the misconduct of knowing right from wrong and wrongful sale of a controlled substance. The Board determined that the character of service the applicant received upon separation was not in error or unjust. Therefore, relief was denied. 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 : : : GRANT FULL RELIEF : : :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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, 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 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, USC, 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. 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 the ABCMR may, in its discretion, hold a hearing. 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. 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. c. 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. 5. 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 (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) 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. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or 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, 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) AR20230006499 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1