IN THE CASE OF: BOARD DATE: 1 October 2021 DOCKET NUMBER: AR20200008141 APPLICANT REQUESTS: change his other than honorable discharge to an uncharacterized discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Administrative Decision 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 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 entered at 16 years old, knew nothing about responsibility to the military, or a job. He was sexually abused at Benning by two GIs for cocaine. He got authorized to leave and didn’t go back for fear of rape again. He was way too young. He was abandoned at 5 and the Army could fill a hole in his life. He does qualify for more than only medical. He went absent without leave (AWOL) and didn’t want to return because of sexual abuse and fear. He was only 16 years old when he enlisted. 3. The applicant enlisted in the United States Army Reserve on 28 January 1975 for a period of 6 years in the delayed entry program (DEP). He was discharged from the DEP enlisting in the Regular Army for a period of 3 years on 3 April 1975. 4. The applicant’s record contains the following documents which show his date of birth as 24 XXXXX 19XX, indicating he was 18 years old at the time of his enlistment: * DD Form 398 (Statement of Personal History), dated 16 June 1974 * Standard Form (SF) 88 (Report of Medical Examination), dated 22 January 1975 * SF 93 (Report of Medical History), dated 22 January 1975 * A DA Form 3284-R (Applicant's Statement of Name Change), dated 27 January 1975 * DD Form 4 (Enlistment Contract – Armed Forces of the United States), dated 28 January 1975 * DD Form 4, dated 3 April 1975 * birth certificate * DA Form 2 (Personnel Qualification Record – Part I), dated 11 October 1975 5. The applicant was awarded the military occupational specialty (MOS) 11B (Infantryman) on 22 August 1975. He was transferred to Fort Benning, GA on 10 September 1975. 6. The applicant’s DA Form 2-1 (Personnel Qualification Record – Part II) shows the applicant was AWOL from 14 October 1975 to 11 November 1975 and 19 November 1975 to 29 February 1976. 7. A DA Form 4187 (Personnel Action) dated 24 December 1975, shows the applicant’s duty status changed from confined military authorities to absent without leave effective 19 November 1975. A second DA Form 4187 also dated 24 December 1975, shows his duty status changed from absent without leave to dropped from unit rolls effective 19 November 1975. 8. A DA Form 3835 (Notice of Unauthorized Absence from US Army) was issued on 12 February 1976. A DA Form 3836 (Notice of Return of US Army Member from Unauthorized Absence) dated 9 March 1976 shows the applicant was apprehended by military authorities on 1 March 1976. 9. The applicant’s completed separation packet was not in the available record. 10. A SF 88 shows the applicant was provided a medical examination on 9 March 1976 at General Leonard Wood Army Community Hospital, Fort Leonard Wood, MO and shows he was qualified for separation. A corresponding SF 93 shows he reported his health as good. No significate defects were noted. 11. Special Orders Number 93, dated 2 April 1976, shows the applicant was transferred for the purpose of separation processing with an effective date of discharge of 5 April 1976. 12. A letter addressed to the applicant, dated 5 April 1976, shows the he was advised the reason for his separation from active duty was for conduct triable by court martial under chapter 10, Army Regulation (AR) 635-200. 13. The applicant’s DD Form 214 shows he was discharged under other than honorable conditions on 5 April 1976 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. His separation code was KFS, and reentry code was 4. He was credited with 9 months and 28 days total service for pay. Item 21 (Time Lost) shows 132 days. 14. The applicant provides a copy of a VA administrative decision concerning his character of discharge determination dated 8 May 2020. It states: a. The claimant's United States Army service from April 3, 1975 to April 5, 1976 is dishonorable for VA purposes and is a bar to benefits under the provisions of 38 C.F.R. §3.12( d)( 4). b. This discharge was not the result of a general or special court-martial's finding of bad conduct. c. The claimant is entitled to health care benefits under Chapter 17, Title 38 U.S.C. and 38 CFR §3.360(a) for any disability determined to be incurred or aggravated during active service from April 3, 1975 to April 5, 1976. 15. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides 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. 16. Title 38, United States Code (USC), Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 17. In reaching its determination, the Board can consider the applicant's petition, his statements, and the medical advisory, in light of the published Department of Defense guidance on equity, injustice, or clemency. 18. MEDICAL REVIEW: a. Applicant is applying to the ABCMR requesting an upgrade of his Under Other Than Honorable Conditions discharge due to being the victim of a military sexual trauma (MST). Applicant asserts that he was sexually abused at Fort Benning by two GIs for cocaine, and that fear of further sexual assault was the reason for his AWOLs. The Army Review Boards Agency (ARBA) Psychologist reviewed this case. Documentation reviewed included the applicant’s completed DD 293, DD 149 and supporting documents, his ABCMR Record of Proceedings (ROP), his separation military documentation, and the VA electronic medical record (JLV). b. The ABCMR ROP outlines the details and circumstances of the applicant’s military history. Applicant enlisted in the United States Army Reserve in the delayed entry program on 28 January 1975 and subsequently enlisted in the Regular Army on 3 April 1975. He was discharged on 5 April 1976 under the provisions of Army Regulation 635- 200, Chapter 10, in lieu of court-martial for AWOL from 14 October 1975 to 11 November 1975 and 19 November 1975 to 29 February 1976. c. Due to the period of service, no active duty electronic medical records (AHLTA) were available for review and no hard copy medical documentation from the time of service was submitted for review. d. Review of VA electronic medical record (JLV) indicates that the applicant is not service connected. The medical record is void of any behavioral health encounters or behavioral health diagnoses. Record reveals that applicant has a history of homelessness. e. After review of all available information, there is no evidence to corroborate applicant’s assertion of military sexual trauma (MST). Per Liberal Consideration, however, applicant’s testimony alone establishes mitigation for MST. It is the opinion of the Agency psychologist that there was a direct association between the MST and the misconduct that led to applicant’s discharge since he reported going AWOL to escape the fear of further sexual assault. In accordance with Liberal Consideration guidance, the MST outweighs the misconduct. It is recommended that his discharge be upgraded to Honorable and his narrative reason be changed to “Secretarial Authority”. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for 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, a medical review, and whether to apply clemency. The applicant did not provide letters of support nor evidence of post-service achievements to weigh a clemency determination. Based upon a preponderance of evidence, and guidance for consideration of discharge upgrade requests, the Board determined that the character of service the applicant received upon separation should be corrected as a matter of clemency. He requested an uncharacterized discharge; however, the Board understands that character of service is for members separated in an entry level status. Therefore, the Board agreed to upgrade the characterization to under honorable conditions (General), with no further changes. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XX :XX :XX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 5 April 1976 showing his character of service as under honorable conditions (General). 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to showing the character of service as uncharacterized. 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. Army Regulation (AR) 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-9a(1), states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case. Entry-level status is defined as the first 180 days of continuous active duty or the first 180 days of continuous active service after a service break of more than 92 days. b. Paragraph 7-5a, states male members will be released from military control by reason of a void enlistment or induction if the member enlisted or volunteered for induction while under 17 years of age. c. Chapter 10 states 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. 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, sexual assault, or sexual harassment. 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. 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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 6. Title 38, USC, section 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 7. Title, 38 USC, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200008141 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1