ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 March 2021 DOCKET NUMBER: AR20200004219 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 16 January 2020, with self-authored statement * Veterans Health Information Systems & Technology Architecture (VISTA) web screenshots, dated between 16 February and 19 March 2017 FACTS: 1. The applicant did not file within the three-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: a. He enlisted in the Army straight out of high school; he was fully aware of what to expect in basic training and was a motivated young adult. He had an advantage over those who did not know the military life, as he had grown up with a father that was a drill instructor. He made his first mistake in the dining facility on day two, when he attempted to put sugar on his grits. He inherited the nickname "sugar britches," which would stick with him for his entire stay. b. Later that night, he was called out along with his entire platoon and "smoked" for his mistake. This continued every night for a few weeks. There was one guy in particular that harbored very hateful feelings toward him, so much so that he would try to physically fight him at every opportunity. They called this Soldier because he was from. This guy was the biggest person in the platoon and the strongest. c. One night around 0200 hours, he awoke to urinate. While relieving himself at the urinal, he felt the presence of someone behind him. As he turned to see who it was, grabbed him and slung him into the shower area. and his battle buddy were almost in full uniform because they were pulling fire watch duty. There was only one way in or out of the shower area and his exit was blocked by and his battle buddy. d. The applicant tried talking his way out of there but was punched in the face by . He attempted to fight back to no avail and was hit with a flurry of punches. He hit his head on one of the separating half walls and was knocked unconscious. When he came to, was anally penetrating him and covered his mouth when he tried to scream. battle buddy was standing in the doorway watching with the most sadistic look of enjoyment. The very last thing said before he got up was that if the applicant said anything he would kill him. e. He could never have fathomed that this would be his military experience. He eventually made it back to his bunk where he didn’t sleep at all. He made a vow with himself that no one would ever find out about what happened. Little did he know that his silence would imprison him in ways that he never could have imagined. He managed to sneak out one night while everyone was sleeping and walked to the nearest town. He caught a cab and had the driver take him to the next state over. f. He ordered a pizza and used a check that had his mother’s address on it to pay. When the delivery driver called the number on the check, his mother assumed someone had stolen her son’s checkbook. He was incarcerated overnight for being absent without leave (AWOL). When he returned the next day, he was smoked by all of the drill instructors and was not given the opportunity to speak. He knew there was no way he would ever be able to tell them the truth. He made up a fictitious story of why he left because he didn’t want to look weak or sissy like. g. His company commander was willing to let him pick up where he had left off. His attacker was still there so he took off AWOL again. He was young and scared and lacked the ability to understand the impact this choice would have on his life. He ran home to Texas this time. He came back home changed and would never tell anyone the truth of what happened in basic training. Thus began his downward spiral that would plague him for years to come. He is learning to accept the military sexual trauma for what it was and is trying to heal from it. 3. The applicant enlisted in the Regular Army on 23 September 1998. 4. A checklist for administrative discharge actions shows the applicant was AWOL from on or about 17 January 1999 through on or about 23 January 1999, and from on or about 24 January 1999 through on or about 2 March 1999. 5. Court-martial charges were preferred against the applicant on 16 March 1999, for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 24 January 1999 to on or about 3 March 1999. 6. The applicant consulted with legal counsel on or about 16 March 1999. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service. 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. c. He elected not to submit a statement in his own behalf. 7. The separation authority approved the applicant's request for discharge on 15 November 1999, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed his reduction to the lowest enlisted grade and the issuance of a UOTHC discharge. 8. The applicant was discharged on 9 June 2000, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. 9. 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. 10. The applicant provides screenshots from VISTA web, which shows he was evaluated for depression/post-traumatic stress disorder (PTSD). 11. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 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 mental health conditions, including PTSD. 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. 12. MEDICAL REVIEW: 1. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: While the applicant is not service connected at this time, the VA has endorsed a MST. Based on liberal consideration and nexus between trauma and avoidance, the basis for separation is mitigated. Accordingly, an upgrade is recommended. 2. Due to the period of service, active duty electronic medical records are void. 3. In February 2017, the applicant was seen for a MST and substance abuse. The applicant noted 20 - 30 arrests with five prison sentences; violence, possession, domestic violence, assault of a public servant, etc. The applicant reported during his recent incarceration, he was diagnosed with Bipolar Disorder. The applicant was diagnosed with Other Specified Depression, MST, substance disorders and likely Antisocial Personality Disorder. In March, the applicant was admitted into a substance residential program; however, discharged in May due to inappropriate romantic behaviors with another vet. The applicant appealed the decision and readmitted a few days later; however, discharged again for noncompliance with rules. The applicant attended a few follow up appointments with the diagnosis of Antisocial Personality Disorder and Polysubstance Abuse and Dependency. The applicant was then deemed ineligible for care due to discharge. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board considered the applicant’s statement, his military service record, documents provided by the applicant and the review and conclusion of the medical advisory opinion. Evidence in the record show the applicant did not complete basic training or receive a military occupational specialty (MOS). The Board agreed with the conclusion of the medical findings that there were mitigating factors and an upgrade was warranted. The applicant did not provided evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, to include the nature of the offense and the conclusions of the advising official, the Board agreed that an upgrade was appropriate as a matter of liberal consideration. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 Under Honorable Conditions (General). X CHAIRPERSON 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 three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 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. (Uncharacterized Separations). A separation was deemed entry-level separation when commanders initiated the action while the Soldier was in entry level status. For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service. Soldiers separated in an entry-level status were issued an uncharacterized character of service. On a case-by-case basis, and when clearly warranted due to unusual circumstances involving personal conduct or duty performance, the Secretary of the Army could grant a Soldier an honorable character of service. d. Chapter 11, entry level performance and conduct, provided for the separation of personnel due to unsatisfactory performance or conduct, or both: Evidenced by: • inability • lack or reasonable effort • failure to adapt to the military environment • minor disciplinary infractions e.. Chapter 10 of that regulation provided, in pertinent part, 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. 3. Army Regulation 635-200 states separation under Chapter 11 applied to Soldiers who were in an entry-level status (i.e., had completed no more than 180 days of continuous active duty before the date of the initiation of separation action) who could not meet the minimum standards for completion of training. An uncharacterized description of service was required for separation under this chapter. Soldier’s counseling or personnel records must establish that the Soldier was afforded a reasonable opportunity to overcome the deficiencies. The counseling will be comprehensive and will include reason for counseling, that separation action may be initiated if be behavior continues, the type of discharge that could result from the possible separation action and the effect of each type, and each counseling session required by this paragraph must be recorded in writing. For Rehabilitation purposes, Soldiers will be recycled (reassigned between training companies or, where this is not feasible, between training platoons) at least once; however, the separation authority may waive the rehabilitation requirement. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014, 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. 5. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs 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, 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 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 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. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 6. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service DRBs and BCM/NRs 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. //NOTHING FOLLOWS//