IN THE CASE OF: BOARD DATE: 9 February 2021 DOCKET NUMBER: AR20190005194 APPLICANT REQUESTS: his under other than honorable conditions (UOTHC) discharge be upgraded to an Honorable or Under Honorable Conditions (General) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 14 June 2002 * self-authored letter, undated FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the 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, he believes he suffered from post-traumatic stress disorder (PTSD) from events of sexual harassment against him and his wife. He contends his Sergeant (SGT) who committed the sexual harassment also eventually slept with his then wife and now his ex-wife. He believes the events of sexual harassment and adultery led to his actions of driving under the influence (DUI) and his drug addiction. The aforementioned medical reasons are his reasoning for and upgrade to his UOTHC discharge. 3. On 17 October 2000, the applicant enlisted into the Regular Army. 4. On 27 July 2001, the applicant accepted non-judicial punishment (NJP) under the provision of Article 15, Uniform Code of Military Justice (UCMJ), Article 112a (Wrongful Use, Possession, etc., of Controlled Substances) for the following misconduct and imposed punishment: * he did on or about 22 May 2001, wrongfully use marijuana a Schedule I substance * he did on or about 12 June 2001, wrongfully use marijuana a Schedule I substance * he was reduced to private (PV1)/E-1 5. The applicant's official military personnel file (OMPF) contains a/an: * DA Form 2-1 (Personnel Qualification Record) * DA Form 4856 (Developmental Counseling Form), dated 1 June 2001 * DA Form 4856, dated 2 January 2002, for DUI and various UCMJ violations * Standard Form 507 (Clinical Record), dated 13 February 2002 * DD Form 2697 (Report of Medical Assessment), dated 12 February 2002 * DD Form 2807-1 (Report of Medical History), dated 13 February 2002 * DD Form 2808 (Report of Medical Examination), dated 13 February 2002 * DD Form 2624 (Specimen Custody Document – Drug Testing), dated 17 January 2002 * DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 26 February 2002 * DA Form 4856, dated 26 February 2002, for his positive urinalysis test * Memorandum, dated 27 February 2002, for his mental health evaluation; shows he was evaluated for Chapter 14-12c and as Army Substance Abuse Program (ASAP) failure he met the criteria for Chapter 9 (Rehabilitation Failure); he was cleared for administrative action and offered ASAP counseling pending discharge * DD Form 2624, dated 14 March 2002 * Enlisted Records Brief (ERB), dated 23 April 2002 – shows his rank as Private (PV2) 6. On 22 March 2002, the applicant's commander signed a memorandum of intent to chapter him UP of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 14 (Separation for Misconduct), Paragraph 14-12c (Commission of a Serious Offense) for wrongful use of a controlled substance (Marijuana). On the same day the applicant acknowledged the receipt of the correspondence. a. He was recommended for an "Under Other Than Honorable Conditions Discharge Certificate." b. He informed the applicant of his rights, ability to consult with consulting counsel and/or a civilian counsel at no expense to the government. 7. The applicant's intermediate commanders recommended approval of discharge under provisions (UP) of Army Regulation 635-200, chapter 14, paragraph 12c and he be issued a UOTHC Discharge Certificate. 8. On 11 April 2002, the applicant and his counsel (Judge Advocate (JA)) signed a waiver of rights for commission of a serious offense under Army Regulation 635-200, chapter 14-12 (Commission of a Serious Offense), Administrative Board Procedures, which shows: * he was advised by his consulting counsel * he understood he was being considered for a separation under other than honorable conditions (UOTHC) * he voluntarily waived consideration of his case by an administrative separation board * he would not submit statements in his own behalf * he understood he may until his separation was approved his separation withdraw his waiver and request an administrative separation board * he understood he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he understood with an UOTHC discharge he may be ineligible for many or all benefits for Federal and State laws 9. 28 March 2002, the applicant was ordered not to reenter the limits of the United States Military Reservation at Fort Polk, LA. 10. On 18 April 2002, the separation authority approved the recommended Discharge in accordance with (IAW) Army Regulation 635-200, chapter 14, paragraph 12c. He directed the applicant to receive a UOTHC Discharge Certificate. His rank is listed as PV1 which did not require a directive to reduce him to the lowest rank IAW regulatory guidance. 11. On 14 June 2002, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14-12c. His service was characterized as UOTHC. He completed 1 years, 7 months, and 2 days of net active service. His DD Form 214 shows: * block 4a (Grade, Rate or Rank) – Private (PV2) * block 4b (Pay Grade) – "E2" * block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) – " NATIONAL DEFENSE SERVICE MEDAL//ARMY SERVICE RIBBON//NOTHING FOLLOWS" * block 26 (Separation Code) – "JKQ" * block 27 (Reentry Code) – "3" * block 28 (Narrative Reason for Separation) – "MISCONDUCT" 12. The applicant's record is void of evidence which shows he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. 13. The applicant provides a self-authored letter which states, in effect, he is unsure if his request to the Board is the right forum to for an upgrade of his discharge but it is the avenue the U.S. Department of Veterans Affairs (VA) advised him to take. He believes his UOTHC discharge he received in October 2001 should be upgraded for medical reasons. a. He enlisted in the Army without issues concerning drinking or drug use. During his period of service his squad leader sexually harassed him and his wife, which later resulted in his squad leader sleeping with his wife. He was greatly distressed by the events and took the issue to the Colonel of the 2nd Armored Calvary Regiment (ACR) located at Fort Polk, LA. b. He found it difficult to serve under a man that would do such a thing and his unit [8th Engineers] was not supporting him. The unit seemed to almost congratulate the Sergeant (SGT) at the time. He was transferred to the Warrior Brigade by the Colonel and worked in a gym, which led him to felt very displaced from the career in the Army that he wanted. c. He believes his knowledge of his wife cheating with the SGT was the cause of his drinking heavily the night he made the error of committing the offense of driving under the influence (DUI). He contends he was discharged because of his driving under the influence (DUI) and a failed drug test [urinalysis]. d. The events during his military service started a downward spiral that would last for nearly two decades. Through his perseverance and determination he has now been sober for five years. He still feels that he has trauma associated with his military career which is the reason for his request. The upgrade of his discharge would assist him in gaining the support he desperately requires to continue his sobriety and not relapsing which would be certain death. He is proud of his service however short it may have been because he loves the Army. 14.. Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. Paragraph 14–12 (Conditions that subject Soldiers to discharge), Soldiers are subject to action per this section for the following: a. A pattern of misconduct consisting of one of the following: * Discreditable involvement with civil or military authorities * Discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army b. Commission of a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Court – Martial (MCM). c. Paragraph 3-7a provided that an honorable discharge was a separation with honor and entitled 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. 15. 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 (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. 16. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 17. Based on the applicant's contention(s) the Army Review Board Agency medical staff provides a written review of the applicant's medical records, outlined in the "MEDICAL REVIEW" section of this Record of Proceedings. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) was not in use at the time of his service. His hardcopy medical record was not available for review. A review of his service record indicates he completed a separation physical on 13 Feb 2002 and met retention standards. A mental health evaluation was conducted on 27 Feb 2002. The provider noted he was cleared for administrative action. He had been in treatment under the Army Substance Abuse Program but was considered a rehabilitation failure due to continued substance use. The applicant asserts he was sexually harassed and stated drinking because his wife cheated on him. He asserts he experienced trauma because of this but did not provide documentation of any psychiatric diagnoses. A review of JLV indicates the applicant has not been evaluated or treated in the VA system. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is no documentation to support a behavioral health condition during his military service. He met retention standards at the time of his discharge. There is no diagnosed psychiatric condition to consider with respect to the misconduct that led to his discharge. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was discharged from active duty by reason of Misconduct. His service was characterized as under other than honorable conditions. The Board agreed with the medical reviewer's assessment that there is no diagnosed psychiatric condition to consider with respect to the misconduct that led to his discharge. After reviewing the application and all supporting documents, the Board found that relief was not warranted based upon guidance for consideration of discharge upgrade requests. 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, United States 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations–Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of chapter 14. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate. A characterization of honorable may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is delegated. Paragraph 14-12c provides for the separation of a Soldier by reason of commission of a serious offense. Subparagraph (2) states abuse of illegal drugs is serious misconduct. 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. 3. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 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 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 (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 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. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 5. 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 (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. 6. 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 regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. he applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190005194 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1