ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 April 2021 DOCKET NUMBER: AR20210005010 APPLICANT REQUESTS: through Counsel, personal appearance before the Board and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect the following: . in item 24 (Character of Service) Honorable or General under Honorable Conditions . in item 25 (Separation Authority) Secretarial Authority . in item 27 (Reenlistment (Re) Code) RE-1 . in item 28 (Narrative Reason for Separation) Miscellaneous/General Reasons APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • Counsel’s brief • applicant’s self-authored statement • 58 pages of service records • 24 pages of service medical records • 59 pages of Department of Veterans Affairs (VA) medical records • 16 letters of support and recommendation • statement from Dr. P____, PhD, VA clinical psychologist, dated 15 July 2019 • statement from Dr. C____, PhD, VA psychologist, dated 6 August 2019 FACTS: 1. The applicant did not file within the 3-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. Counsel provided a 20-page brief which has been provided in full for the Board’s review. He states in pertinent part: a. The applicant was violently raped while serving as an Infantryman in the Army during the early 1980s. Being raped caused him to experience intense fear, anxiety, hypervigilance, insomnia, and paranoia. He developed and was ultimately diagnosed with post-traumatic stress disorder (PTSD) as a result of military sexual trauma. The train of this traumatic attack manifested in various ways, including out-of-character behavior that led to disciplinary actions against him. Under current military procedures, the applicant could have reported the military sexual trauma without fear and received a medical discharge due to PTSD. Instead, he was discharged from the Army under other than honorable conditions in 1981 when PTSD was not yet a widely recognized medical diagnosis. b. Since then, the Secretary of the Defense issued memoranda mandating that Boards for Correction of Military Records give special and liberal considerations to applicant’s with PTSD and applicants who have suffered a military sexual trauma. Pursuant to these modern standards, which recognize the injustice of denying upgrades to veterans like the applicant, the ABCMR should revise his discharge status to honorable or general under honorable conditions, revise the authority and narrative reason for separation to Secretarial Authority and/or miscellaneous/general reasons, and change his RE code to RE-1. c. Counsel recounts the applicant’s personal and service history, as detailed in the applicant’s provided self-authored statement and discussed at great length below. In 2016, after decades of struggling with persistent nightmares, anxiety, hypervigilance, and anger, the applicant sought medical care at the Washington, D.C. VA Medical Center, where he was referred to the center’s Trauma Services Program. In early 2017, after evaluation in the Trauma Services Program Clinic, the applicant was diagnosed with chronic PTSD caused by the military sexual trauma he experienced while on active duty in the Army. d. Since being diagnosed with service-connected PTSD, the applicant has bene under the care and treatment of two VA psychologists, Dr. P____ (2017-2018) and Dr. C____ (2018 to present) whose professional opinions are that the applicant’s PTSD was caused by the military sexual trauma he suffered while in the Army. And that his out-of­character conduct in the military is explained by the fact that he was violently raped and suffering from PTSD. They further confirm that the applicant exhibits classic symptoms of PTSD arising from sexual trauma, including nightmares, psychological and physiological distress, avoidance, hypervigilance, exaggerated startle reflex, irritability, and anger. Today, the applicant’s persistent PTSD symptoms continue to have significant negative impact on his behavior, which remains substantially different than it was before he entered military service., both in his work and his personal life. e. The applicant filed a claim for disability benefits with the VA on 24 August 2017 and requested a special determination on 6 June 2018. On 19 September 2018, the VA granted the applicant service-connection of PTSD for treatment purposes only and denied all other disability compensation and benefits because the applicant engaged in willful and persistent misconduct that led to his discharge under other than honorable conditions. On 13 September 2019, the applicant filed a Notice of Disagreement with the VA, which demonstrate his misconduct was excusable due to his PTSD. He has requested that the VA find his service was honorable for VA purposes and that he be eligible for full disability and other VA benefits, in addition to the PTSD treatment he currently receives. This request is still pending. f. The ABCMR has the authority to correct military records when necessary to remove an injustice and pursuant to Department of Defense policy is to give liberal and special consideration to applicants who suffer from PTSD cause by military sexual trauma, particularly where a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome that the applicant received at the time of his discharge. The ABCMR should consider the following questions as mandated in the Secretary of Defense August 2017 memorandum regarding sexual assault and PTSD, the answers to which are all “yes” in the applicant’s case: . Did the veteran have a condition or experience that may excuse or mitigate the discharge? . Did that condition exist/experience occur during military service? . Does that condition or experience actually excuse or mitigate the discharge? . Does that condition or experience outweigh the discharge? g. The ABCMR also has the authority to grant relief from an other than honorable conditions discharge based on equity and to ensure fundamental fairness. His discharge upgrade should be granted on equitable grounds, based on the totality of the applicant’s life circumstances, to avoid injustice. At a young age he proudly volunteered to serve in the Army and hoped to continue his family’s legacy of military service, but his dreams were cut short when he was sexually assaulted and developed PTSD. Instead of service a full career in the military, he has suffered for decades as the result of being raped, the symptoms of resultant PTSD, and the stigma of being discharge under other than honorable conditions for relatively minor misconduct that occurred nearly 40 years ago. Despite good job performance, he has struggled to maintain employment due to his daily struggles with PTSD. h. The applicant received an under other than honorable conditions discharge at a time when PTSD was not widely recognized or understood, and military sexual trauma was rarely acknowledged, especially for male victims. If the applicant were discharged today, his misconduct would be assessed under appropriate medical standards and recognized as symptomatic of both military sexual trauma and PTSD and falls squarely into the circumstances that the September 2014 and August 2017 Secretary of Defense memoranda are intended to remedy. In light of the modern standards mandated for cases involving PTSD and military sexual trauma and in recognition of the injustice the applicant has endured for nearly 40 years, the ABCMR should grant the applicant a discharge upgrade to honorable or general, under honorable conditions, revise the authority and narrative reasons for separation to Secretarial Authority and miscellaneous/general reasons, and change his RE code to RE-1. 3. The applicant states: a. He always wanted to be in the military. His father served as a U.S. Marine during the Korean War and as a child he spent significant time with his father and his fellow servicemen, wanting to be a “lifer” just likehis dad. He graduated from high schoolin March 1980 and within a few days of graduation asked his parents for permission to enlist in the Army, because he was only 17 years old and needed their consent. His parents were initially reluctant to give their permission because of his young age and small stature. Still, they saw how determined he was to make his own way in the military and gave their blessing. b. He enlisted on 18 March 1980 and underwent a medical examination, where he was found medically qualified for service. He took his oath of enlistment and was transported to Fort Benning, GA for basic combat training (BCT). AT BCT he excelled, “maxing out” on all his physical training requirements and was routinely ordered to lead his unit on long runs through the woods because of the good physical shape he was in. He successfully completed BCT and advanced individual training (AIT), excelling at weapons qualification. He was then sent to Fort Lewis in November 1980, WA, once his initial entry training was complete. c. He recalls feeling tremendous pride when they marched in formation during his first day at Fort Lewis. He was excited to start his military career and, although it was challenging, he genuinely enjoyed training with his unit. He was promoted to private first class in December 1980. After several weeks at Fort Lewis, his unit was detailed to Fort Drum, NY, where they had to wear winter gear and snowshoes to get around the base. Their unit was housed in old-style military barracks, which consisted of a large common area with bunks spread throughout the room. The barracks were equipped with a furnace that sometimes made the room feel very hot. d. During the training assignment at Fort Drum, he became sick. He felt feverish, weak and tired and his commanding officer directed him to stay in the barracks to rest while his unit was out training. He laid down on his bunk and tried to fall asleep, but could not because it was too hot in the room, so he took off his clothes and had only his Army-issued underwear on. He covered himself with an Army-issued blanket and fell asleep on his stomach. After a short time, he awoke to the feeling of a person placing their body weight on his back. When he tried to turn, the person began punching him in the back of the head and pulling his underwear off. He tried his best to fight back and yelled and screamed as loud as he could. He then felt a heavy punch to the back of his head and was knocked out. He does not know how long he was unconscious. e. When he finally woke up again, he was naked and hanging off the bunk. He felt a tremendous pain in his rectum and anus. He also had a strong headache. He could not stand, so he slid off the bunk and crawled to the nearby bathroom showers. Once in the shower, he noticed he was bleeding from his rectum. He tried to wash off as best as he could and cried in the shower. f. He knew he had been raped. He was shocked by what happened and recalls having two thoughts as he tried to gather himself. First, he was most concerned about whether there was anyone in the barracks because he wanted to protect himself if necessary. Second, he did not want anyone else to know what had happened to him. So, after showering, he got dressed, got back into his bunk, balled up and cried. He felt a deep sense of confusion, betrayal, helplessness, and sadness. Two days after he was raped, he went back to normal duty because he was worried others would find out about the attack if he did not appear to be functioning normally. Most of all, he did not want word of the attack to get back to his father because he did not want him to think of him as less of a man. He also felt he could not quit the Army because he knew how much that would have disappointed his dad. g. Once back at Fort Lewis, he fought though pain in his rectum for several weeks during training and other unit activities. After a short time, he had great difficulty sleeping because he was scared of being attacked again. He also had recurring nightmares in which he relived the attack in vivid detail. During the day, he felt intense anger towards everyone around him and frequently had panic attacks in which he felt overwhelmed, confused, and fearful. He also felt paranoid because he desperately wanted to find out who had raped him. He suspected it was a superior officer or noncommissioned officer (NCO) because only they would have known he was directed to stay in the barracks alone, but he had no way of knowing this for sure. This made him highly distrustful of everyone in his unit, especially his superior officer and NCOs. h. At the same time, he wanted to keep to himself because he was fearful he would be attacked again. He did not know if word about the attack was spreading within the unit. As a result, he became very defensive and short-tempered, remaining on high alert. He began to look at every object as a weapon that he might use to defend himself. He did not want to be alone with anyone, particularly in confined spaces, such as a superior’s office or the bathroom, out of fear he would be attacked. He hated to have anyone standing behind him, including when their unit was ordered to stand or train in formation. If someone even so much as tapped him on the shoulder, he immediately reacted to defend himself. i. The intense thoughts and feelings he experienced after being raped made it impossible for him to continue functioning in the military. He refused to go into any situation where he could not control his physical safety. As a result, he engaged in misconduct that he had never done in the past. He was disciplined for disobeying orders, failing to report to an assigned place of duty, being late, and disrespecting superior officers. j. At one point, a superior officer threatened to assign him to the base Correctional Custodial Facility (CCF), a detention facility located in a remote part of Fort Lewis that was reserved for individuals who had a history of serious disciplinary issues and who, in many cases, had been court-martialed for alleged criminal misconduct. He was also directed on one occasion to go see a post psychologist. During that session, he told the Army psychologist he would physically retaliate against his superior officers if they assigned him to the CCF. He made this statement because he felt his superior officers were unfairly trying to “teach him a lesson” by attacking his biggest vulnerability as they knew he was very uncomfortable around other people and the CCF was full of potentially dangerous people. He later learned that this psychologist reported the statement back to his superior officers. k. Shortly thereafter, he was assigned to the CCF for approximately 1 month. This assignment made the negative thoughts and feelings he was experiencing even more intense because it forced him to relive the attack virtually every minute of the day. At the CCF, he was assigned to old-style barracks that very closely resembled the barracks at Fort Drum where he was raped. The barracks consisted of an open room with bunks arranged throughout. He picked a bunk in a corner away from the bathroom so he could have his back against the wall and see anyone who was walking toward him. Even then, he felt he could never let his guard down at the CCF. As a result, his sleep troubles, nightmares, and strong feelings of anger, paranoia, and confusion got worse. l. When he returned to his regular duties, he was again assigned to a two-person room. Although he did not think his roommate at the time was the person who attacked him, he still setup a “tripwire” system to alert him if anyone crossed over into his half of the room. Within a few weeks, he was informed that a third Soldier would be assigned to his room, making it impossible for him to have his bunk against the wall and further increased the feelings of fear and anxiety he was experiencing. He complained to a superior officer about this change and shortly thereafter in July 1981, he was informed that his chain of command had initiated action to administratively separate him from the Army. At that point, he no longer wanted to be put in situations where he felt unsafe, so he signed a paper waiving his right to appear before an administrative separation board and was discharged several weeks later in September 1981. m. He remembers feeling deeply ashamed the day his father and mother came to bring him home. He felt he had let them down because he was unable to ward off the attacker and ultimately because he did not achieve his dream of making a military career. Once back home, he struggled with the same feelings of anxiety and anger he had while he was in the military. He spent hours locked in his room alone and did not want to talk to anyone, particularly not about his time in the Army. He had a bad temper and was quick to anger or react violently if he was touched or felt physically threatened in any way. He also became extremely protective of his little sister and got into fights with kids whom he believed were picking on her because she was smaller and younger. n. Within a few months of coming home from the Army, he began looking for work so he could help support himself and his family. In December 1981, he was hired in an entry-level clerk position within the U.S. Department of Agriculture, where he performed administrative tasks such as filing, data entry, and managing phone calls. He remained in that position for a little more than 1 year, but eventually could not stay because he felt uncomfortable in situations where he was forced to interact with others or could not control where he sat or stood. For example, he had great difficulty sitting at a desk with his back to others, participating in large group meetings, and walking through crowded building lobbies or break rooms. o. Since then he has had more than twenty different jobs with various Federal agencies, government contractors, and other entities performing administrative tasks and information technology services. He has excelled at many of these jobs and has been fortunate to work with people who recognized his talents and effort despite having limitations on where he could physically do his work or the level of interaction he could have with other people. While he had to leave some of these positions for non-health reasons (such as the end of the contract, reduction in force, now opportunity), several of his jobs ended because he was no longer able to cope with the stress and anxiety he felt when he was around large groups of people. p. Throughout this time, he also continued to struggle in his personal life. He had recurring nightmares about the attack several times per week. He also lived in a constant, hyper-defensive state. He could not go to restaurants, the movies, the grocery store, or anywhere else where he could not control his physical environment. He had frequent intrusive thoughts about how he would defend himself if a person suddenly attacked him and looked at regular objects like a pen as though they were weapons he could use in self-defense. He also had significant trouble being affectionate with his children. One time his son jumped on his back while they were playing and he quickly flipped him onto the ground out of sheer instinct. Although his son was not hurt, it was very difficult for him to accept that he could not let his guard down even with his own children. q. After years of trying to keep his nightmares, anxiety, and anger bottle inside, he finally sought medical care at the Washington D.C. VA Medical Center in 2012. In 2016, his primary physician at the VA referred him to the medical center’s Trauma Services Program, where he was diagnosed in 2017 with PTSD due to a military sexual trauma. The initial evaluation at the Trauma Services Program is the first time he told anyone that he was raped while serving in the Army. Up until that point, he was ashamed to admit he was sexually assaulted because he was afraid others would view him differently. The physicians and staff at the Trauma Services Program have helped him understand that the attack was not his fault and that it does not define who he is. r. After being diagnosed with PTSD, he was assigned to the care of Dr. P____ in early 2017. Dr. P____ and he had several sessions in which they discussed the sexual trauma he experienced and how it continued to affect him to this day. They eventually agreed to try prolonged exposure therapy, during which he was asked questions that forced him to recall details about the attack he had repressed for many years. These sessions were very difficult for him and the doctor challenged him to perform exercises outside of therapy designed to increase his comfort level with certain every day activities, like sitting on a park bench for 15 minutes or walking through a crowded public area. They also had several sessions in which Dr. P____ taught him techniques to help him deal with his insomnia. Early in 2018, Dr. P____ moved away from the area to work at a different VA Medical center and he began working with Dr. C____, who continues to treat him for PTSD. s. Today, even though he feels as if he is making progress in his treatment, he continues to have significant symptoms of PTSD. He has nightmares about twice a week and cannot sleep past 2 a.m. at least three times a week. He feels extremely anxious around crowds and has difficulty being in public places because he views other people as a potential threat to his safety. His is very uncomfortable when people walk or stand behind him and is quick to react physically if he feels he is not in control of his personal space. He does not know if he will ever fully heal from the trauma he experienced in the military, but he is committed to trying his best to get better every day he is alive. 4. A Standard Form 93 (Report of Medical History), dated 13 March 1980, shows the applicant did not indicate any significant medical conditions. A Standard Form 88 (Report of Medical Examination), dated 13 March 1980, shows the applicant was found qualified for service with a physical profile rating of “1” in all categories. 5. The applicant enlisted in the Regular Army on 18 March 1980 at the age of 17 and was awarded the military occupational specialty (MOS) 11B (Infantryman). After completion of BCT and AIT, he was transferred to an Infantry unit at Fort Lewis, WA effective 9 July 1980. 6. A Standard Form 600 (Chronological Record of Medical Care) shows the applicant was treated on 4 January 1981 for a soft tissue trauma/contusion to the surface of his face after being struck in the face repeatedly. He was treated with sulfa etamide and an ice pack and was to return to the clinic on 19 January 1981. 7. A General Counseling Form, dated 5 February 1981, shows the applicant was counseled by his platoon sergeant on 4 February 1981 for being absent from physical training formation and as a result would perform 4 days of extra duty. 8. Multiple DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) show the applicant accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ on the following occasions for the following offenses: . on 22 April 1981, for disobeying a lawful order to report for extra training on 31 March 1981, for failing to go to his place of duty at the time prescribed on 1 April 1981, and for failing to go to his place of duty at the time prescribed on 3 April 1981 . on 19 May 1981, for failing to go to formation on 27 April 1981, 28 April 1981, 29 April 1981, 6 May 1981, and 7 May 1981 and for willfully disobeying a lawful command to report for extra duty on 6 May 1981 9. A memorandum from the applicant’s immediate commander, dated 7 May 1981, shows he counseled the applicant on 8 May 1981 on his need to take positive corrective action with regard to his duty performance and behavior related to habitual lateness, inability to follow orders, immaturity, and shirking. He was advised without corrective action initiation of action to separate him from the service may be taken. 10. A DA Form 3822-R (Report of Mental Status Evaluation), dated 4 June 1981, shows: a. The applicant underwent a mental status evaluation on the date of the form due to being considered for discharge because of unsuitability and misconduct. b. He was found to have the mental capacity to understand and participate in the proceedings, was mentally responsible, and met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. c. The remarks show the applicant made threats to harm his company commander and first sergeant if they sent him to a CCF. He had no history of violent behavior in the past and the examining psychiatrist did not feel this constituted a danger to the applicant or others at this time. His opinion was that the applicant’s chronically maladaptive behavior would continue and it was recommended that the command consider administrative separation. 11. A General Counseling Form shows the applicant was counseled by his platoon sergeant on 30 June 1981 for the following: . being absent from his place of duty from about 0930 on 29 June 1981 through about 0945 on 30 June 1981 . not being in the proper uniform, i.e. for being in civilian clothes on 30 June 1981 . willfully leaving his place of duty without permission on 12 June 1981 as charge of quarters runner and returning 3 hours later . knowingly and willfully absenting himself from guard duty on 20 June 1981 . repeatedly showing a poor attitude, laziness, inability to follow orders, extremely immature behavior, shirking, and habitual lateness . being a no-show at his dental appointment on 29 June 1981 . total inability to instill trust 12. A third DA Form 2627 shows the applicant again accepted NJP under Article 15 of the UCMJ on 10 July 1981 for the following: . willfully disobeying a lawful command from his superior commissioned officer on 2 July 1981 to report to the charge of quarters every hour on the hour except when prior coordination was made to allow for sleep . leaving his appointed place of duty without authority at 0900 on 20 June 1981 . failing to go to guard duty at 1300 on 20 June 1981 . disobeying a lawful order issued by his platoon sergeant on 29 June 1981 . feigning illness on 26 June 1981 for the purpose of avoiding service . wrongfully communicating to a doctor on 4 June 1981, a threat to injure his first sergeant and company commander by blowing them up if he were sent to a correctional custody facility 13. On 20 July 1981, the applicant was notified by his immediate commander of his initiation of action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for patters of misconduct and that he may receive an under other than honorable conditions characterization of service. He was advised of his right to submit statements in his behalf, be represented by Counsel, and present his case to a board of officers. 14. On 21 July 1981, both his battalion and brigade commanders recommended approval of the applicant’s separation under the provisions of Army Regulation 635-200, chapter 14, for misconduct. 15. On 7 August 1981, the applicant acknowledged having been advised by his consulting counsel of the basis for the contemplated action to separate him for misconduct under the provisions of Army Regulation 635-200, chapter 14 for misconduct, its effects and the rights available to him. The applicant waived consideration of his case by a board of officers and did not submit statements in his own behalf. 16. On 9 September 1981, the approval authority waived the rehabilitative requirement and directed the applicant’s discharge under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 14, for misconduct including his reduction to the lowest enlisted grade. 17. The applicant’s DD Form 214 shows the following: • he was discharged on 18 September 1980, after 1 year, 6 months, and 1 day of net active service • in item 24: Under Other Than Honorable Conditions • in item 25: Paragraph 14-33b (1), Army Regulation 635-200 • item 26 (Separation Code (SPD): JKA [Discreditable Incidents –Civilian or Military] • in item 27: RE-4 • in item 28: Misconduct – frequent incidents of a discreditable nature with civil or military authorities 18. The applicant provided multiple VA medical records, printed on 15 February 2019, which show he was diagnosed with and treated for PTSD at the Washington D.C. VA Medical Center, Trauma Services Program as early as March 2017. 19. A declaration from Dr. P____, PhD, VA clinical psychologist, dated 15 July 2019, states: a. He began treating the applicant in 2017 while working in the Trauma Services Program at the VA Medical Center in Washington, D.C. On evaluation at the clinic, the applicant was diagnosed with chronic PTSD related to a military sexual trauma he experienced while on active duty in the Army. b. After being diagnosed with chronic PTSD, the applicant was provided treatment options and agreed to engage in Prolonged Exposure Therapy, which teaches patients to gradually approach trauma-related memories, feelings, and situations they have actively avoided since experiencing the trauma, thereby decreasing his/her PTSD symptoms. Through this therapy he became intimately familiar with the details of the applicant’s trauma, which stemmed from the sexual assault he experienced while serving in the military. c. Based on his personal observations of the applicant and a review of his medical records and service records, it is his professional opinion that the applicant’s PTSD was caused by the sexual trauma he experienced while serving in the military. The applicant initially excelled in the Army, but shortly after he was sexually assaulted, he engaged in misconduct for a period of several months that deviated from his normal pattern of behavior and was eventually administratively separated for misconduct. The applicant’s sudden and prolonged change in behavior is very common in military sexual trauma survivors who are experiencing PTSD. d. He understands the applicant first disclosed in 2017 that he was sexually assaulted while in the Army. In his experience, this is very common, particularly with respect to male military sexual trauma survivors. They often experience a state of shock after the sexual assault and also typically exhibit persistent feelings of shame, self-blame, inappropriate guilt, and distrust of others. As a consequence, military sexual trauma survivors commonly do not report they have been sexually assaulted and in many cases never seek treatment or first seek treatment many years after the traumatic event. e. It is clear the applicant continues to cope with the sexual assault he experienced while serving in the military and he reposts symptoms that are classic indicators of chronic PTSD arising from a sexual assault, including intrusive distressing memories, dreams, dissociative reactions, irritability or angry outbursts, hypervigilance, and sleep disturbance. 20. A declaration from Dr. C____, PhD, VA psychologist, dated 6 August 2019, states: a. He is the applicant’s current treating psychologist within the Trauma Services Program of the VA Medical Center in Washington, D.C., where he began treating the applicant in 2018, after he had been diagnosed with PTSD due to a military sexual trauma. b. The applicant’s described pattern of misconduct as provided to him by Counsel is not uncommon in military service members who survive a military sexual trauma. Following the attack, he reported feeling unsafe in situations that made him vulnerable or would remind him of the rape and had difficulty managing his many negative emotions. c. Based on his personal observations of the applicant and his report, it is his professional opinion that his PTSD was caused by the sexual trauma he experienced while serving in the military. The applicant exhibits classic symptoms of PTSD arising from military sexual trauma, including nightmares, psychological and physiological distress in reaction to things that remind him of the rape, and avoidance of thoughts or memories related to the rape. His PTSD symptoms have had a negative impact on his personal and work life. 21. The applicant provided a statement from his mother and a statement from his brother. Both generally attest to the fact that the applicant was a normal, happy-go­lucky kid prior to his military service and that he came home a completely different person after having served in the Army. They noticed he was withdrawn, easily startled, defensive, and easily irritated. They only recently learned from him that he had been raped while serving in the Army and after learning this, his dramatic change in behavior finally made sense to them and they better understood his daily struggles. 22. The applicant also provided fourteen additional letters of support and recommendation from colleagues and supervisors alike, all of which have been provided for the Board’s review, which attest to his outstanding work ethic, professionalism, pleasing disposition, competence, and discipline in the work environment. 23. Based on the applicant’s condition the ARBA medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: a. The applicant is applying to the Army Board for Correction of Military Records (ABCMR) through Counsel, personal appearance before the Board and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect the following: . in item 24 (Character of Service) Honorable or General under Honorable Conditions . in item 25 (Separation Authority) Secretarial Authority . in item 27 (Reenlistment (Re) Code) RE-1 . in item 28 (Narrative Reason for Separation) Miscellaneous/General Reasons b. Counsel provided a 20-page brief which has been provided in full for the Board’s review. He states in pertinent part: The applicant was violently raped while serving as an Infantryman in the Army during the early 1980s. Being raped caused him to experience intense fear, anxiety, hypervigilance, insomnia, and paranoia. He developed and was ultimately diagnosed with post-traumatic stress disorder (PTSD) as a result of military sexual trauma. The train of this traumatic attack manifested in various ways, including out-of-character behavior that led to disciplinary actions against him. Under current military procedures, the applicant could have reported the military sexual trauma without fear and received a medical discharge due to PTSD. Instead, he was discharged from the Army under other than honorable conditions in 1981 when PTSD was not yet a widely recognized medical diagnosis. c. The ABCMR Behavioral Health (BH) Advisor was asked to review this case. Documentation reviewed includes: • DD Form 149 (Application for Correction of Military Record) • Counsel’s brief • applicant’s self-authored statement • 58 pages of service records • 24 pages of service medical records • 59 pages of Department of Veterans Affairs (VA) medical records • 16 letters of support and recommendation • statement from Dr. P____, PhD, VA clinical psychologist, dated 15 July 2019 • statement from Dr. C____, PhD, VA psychologist, dated 6 August 2019 d. VA electronic medical record, Joint Legacy Viewer (JLV) was reviewed. e. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) were not reviewed as they were not in use at the time of service. f. The ABCMR Record of Proceedings details the applicant’s military service and the circumstances of the case. The ROP indicates that the applicant entered military service on 18 March 1980 and was discharged on 18 September 1980 with a discharge under other than honorable conditions under the provisions of Army Regulation 635­200, chapter 14, for misconduct including his reduction to the lowest enlisted grade. g. Multiple DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) show the applicant accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ on the following occasions for the following offenses: . on 22 April 1981, for disobeying a lawful order to report for extra training on 31 March 1981, for failing to go to his place of duty at the time prescribed on 1 April 1981, and for failing to go to his place of duty at the time prescribed on 3 April 1981 . on 19 May 1981, for failing to go to formation on 27 April 1981, 28 April 1981, 29 April 1981, 6 May 1981, and 7 May 1981 and for willfully disobeying a lawful command to report for extra duty on 6 May 1981. h. A DA Form 3822-R (Report of Mental Status Evaluation), dated 4 June 1981, shows: The applicant underwent a mental status evaluation on the date of the form due to being considered for discharge because of unsuitability and misconduct. He was found to have the mental capacity to understand and participate in the proceedings, was mentally responsible, and met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. The remarks show the applicant made threats to harm his company commander and first sergeant if they sent him to a CCF. He had no history of violent behavior in the past and the examining psychiatrist did not feel this constituted a danger to the applicant or others at this time. His opinion was that the applicant’s chronically maladaptive behavior would continue and it was recommended that the command consider administrative separation. i. A General Counseling Form shows the applicant was counseled by his platoon sergeant on 30 June 1981 for the following: . being absent from his place of duty from about 0930 on 29 June 1981 through about 0945 on 30 June 1981 . not being in the proper uniform, i.e. for being in civilian clothes on 30 June 1981 . willfully leaving his place of duty without permission on 12 June 1981 as charge of quarters runner and returning 3 hours later . knowingly and willfully absenting himself from guard duty on 20 June 1981 . repeatedly showing a poor attitude, laziness, inability to follow orders, extremely immature behavior, shirking, and habitual lateness . being a no-show at his dental appointment on 29 June 1981 . total inability to instill trust j. A third DA Form 2627 shows the applicant again accepted NJP under Article 15 of the UCMJ on 10 July 1981 for the following: . willfully disobeying a lawful command from his superior commissioned officer on 2 July 1981 to report to the charge of quarters every hour on the hour except when prior coordination was made to allow for sleep . leaving his appointed place of duty without authority at 0900 on 20 June 1981 . failing to go to guard duty at 1300 on 20 June 1981 . disobeying a lawful order issued by his platoon sergeant on 29 June 1981 . feigning illness on 26 June 1981 for the purpose of avoiding service . wrongfully communicating to a doctor on 4 June 1981, a threat to injure his first sergeant and company commander by blowing them up if he were sent to a correctional custody facility. k. The applicant provided multiple VA medical records, printed on 15 February 2019, which show he was diagnosed with and treated for PTSD at the Washington D.C. VA Medical Center, Trauma Services Program as early as March 2017. l. A declaration from Dr. P____, PhD, VA clinical psychologist, dated 15 July 2019, states: He began treating the applicant in 2017 while working in the Trauma Services Program at the VA Medical Center in Washington, D.C. On evaluation at the clinic, the applicant was diagnosed with chronic PTSD related to a military sexual trauma he experienced while on active duty in the Army. Based on his personal observations of the applicant and a review of his medical records and service records, it is his professional opinion that the applicant’s PTSD was caused by the sexual trauma he experienced while serving in the military. The applicant initially excelled in the Army, but shortly after he was sexually assaulted, he engaged in misconduct for a period of several months that deviated from his normal pattern of behavior and was eventually administratively separated for misconduct. The applicant’s sudden and prolonged change in behavior is very common in military sexual trauma survivors who are experiencing PTSD. m. A declaration from Dr. C____, PhD, VA psychologist, dated 6 August 2019, states: He is the applicant’s current treating psychologist within the Trauma Services Program of the VA Medical Center in Washington, D.C., where he began treating the applicant in 2018, after he had been diagnosed with PTSD due to a military sexual trauma. The applicant’s described pattern of misconduct as provided to him by Counsel is not uncommon in military service members who survive a military sexual trauma. Following the attack, he reported feeling unsafe in situations that made him vulnerable or would remind him of the rape and had difficulty managing his many negative emotions. Based on his personal observations of the applicant and his report, it is his professional opinion that his PTSD was caused by the sexual trauma he experienced while serving in the military. The applicant exhibits classic symptoms of PTSD arising from military sexual trauma, including nightmares, psychological and physiological distress in reaction to things that remind him of the rape, and avoidance of thoughts or memories related to the rape. His PTSD symptoms have had a negative impact on his personal and work life. n. Counsel recounts the applicant’s personal and service history, as detailed in the applicant’s provided self-authored statement and discussed in part below: In 2016, after decades of struggling with persistent nightmares, anxiety, hypervigilance, and anger, the applicant sought medical care at the Washington, D.C. VA Medical Center, where he was referred to the center’s Trauma Services Program. In early 2017, after evaluation in the Trauma Services Program Clinic, the applicant was diagnosed with chronic PTSD caused by the military sexual trauma he experienced while on active duty in the Army. Since being diagnosed with service-connected PTSD, the applicant has bene under the care and treatment of two VA psychologists, Dr. P____ (2017-2018) and Dr. C____ (2018 to present) whose professional opinions are that the applicant’s PTSD was caused by the military sexual trauma he suffered while in the Army. And that his out-of-character conduct in the military is explained by the fact that he was violently raped and suffering from PTSD. They further confirm that the applicant exhibits classic symptoms of PTSD arising from sexual trauma, including nightmares, psychological and physiological distress, avoidance, hypervigilance, exaggerated startle reflex, irritability, and anger. Today, the applicant’s persistent PTSD symptoms continue to have significant negative impact on his behavior, which remains substantially different than it was before he entered military service., both in his work and his personal life. o. JLV contains a Behavioral Health diagnosis of PTSD p. After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant has a mitigating diagnosis/condition of PTSD and MST. The applicant met retention standards at the time of discharge. The applicant has a service connection of 70% for PTSD. Under liberal guidance, PTSD and MST are mitigating factors for his unsatisfactory performance and misconduct outlined above. 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, and published DoD guidance for liberal consideration and clemency in consideration of discharge upgrade requests. Based on the available documentation, the Board found sufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination and an upgrade of the applicant’s character of service is warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX :XXX :XXX 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 issuing the applicant a new DD Form 214 for the period ending 18 September 1981 showing in: • in item 24 (Character of Service) Honorable • in item 25 (Separation Authority) AR635-200, Ch5 • in item 27 (Reenlistment (Re) Code) RE-1 • in item 28 (Narrative Reason for Separation) Secretarial Authority 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, 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. 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. 3. 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. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 5-3 states separation under Secretarial Plenary Authority is the prerogative of the Secretary of the Army and is exercised sparingly. Ordinarily, it is used when no other provision of this regulation applies and early separation is clearly in the best interests of the Army. b. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, use of illegal drugs, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter. 5. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific reasons for separating Soldiers from active duty and the associated SPD codes to be entered on the DD Form 214. It states SPD code JKA is the appropriate code to assign to Soldiers involuntarily discharged under the provisions of Army Regulation 635-200, chapter 14, due to misconduct. 6. The SPD/RE Code Cross-Reference Table provides instructions for determining the RE code for Regular Army and Reserve Component Soldiers being separated. The table in effect at the time stipulates an RE code of 3 will be assigned to members separated with an SPD code of JKA. 7. 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. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS//