IN THE CASE OF: BOARD DATE: 16 September 2021 DOCKET NUMBER: AR20210010609 APPLICANT REQUESTS: Reconsideration of his request to upgrade his character of service to honorable, and correction of the corresponding reason and authority and the reentry eligibility (RE) code. In addition to his previous request he requests that the Board take into consideration that he suffers from post-traumatic (PTSD) that is service connected. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) * Counsel’s Memorandum to the Board * Applicant’s Personal Statement * Character References x2 * Letter of Commendation * Certificate of Training * Request to the Department of Veterans Affairs (VA) for Information and Response * VISTA Electronic Medical Documents-Progress Notes 53 pages of 55 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR1999022562 on 17 March 1999. 2. Counsel requests in a memorandum written to the Board that the applicant’s character of service be upgraded and consider his: * Medical documents which substantiate that his PTSD was a result of his service in Korea * PTSD and subsequent behavior resulted due to rape by another service member * PTSD was the result of his administrative discharge 3. Additionally, counsel states: a. The applicant was raped by another service member while stationed in Korea in 1975. (1) Few victims of sexual assault, including those in the military as well as in the civilian sector, choose to report the crime to an authority. Despite fiscal year (FY) 14 being a record year for sexual assault reporting in the Department of Defense (DOD), the number of victims who chose to make a report accounted for about 23% of the estimated number of service members believed to be victimized in the past year. Many victims do not report because they want to forget about the incident and move on, they do not want people to know, they think it is not serious enough to report, or because they do not want people to see them as weak. (2) The DOD enacted Restricted Reporting in 2005 as a result of many victims having concern for their privacy and how others might perceive them. Restricted Reports allow victims to access care and support without command involvement, launching an investigation or engaging in the military justice process. While the Department desires an environment where all victims feel free to make an Unrestricted Report, some victims will never be comfortable participating in the military justice process. Restricted Reporting provides victims with a means to heal while still respecting their desire for confidentiality. (3) Sexual assault allegations are difficult to investigate and prosecute in both the military and civilian sectors. Many victims delay making a report due to concerns about loss of privacy and the negative scrutiny of others. b. The RAND Research [Corporation] also shows how prevalent the negative experiences of those who report sexual assault can be. Overall, the researchers found that 62 percent of women who reported "unwanted sexual contact" to military authorities perceived at least one form of adverse action in response (these percentages relate only to women because small sample sizes mean reliable estimates can't be produced for men): * 32 percent said they perceived professional retaliation (such as being denied promotion or training) * 53 percent said they perceived social retaliation (such as being ignored by coworkers) * 35 percent said they experienced adverse administrative actions (such as being transferred to a different assignment) * 11 percent said they experienced punishments for violations associated with the event (such as for underage drinking) * He was raped in 1975 before the Army had any "systems" in place to protect Soldiers who experienced and reported these assaults * In addition, male Soldiers are still more hesitant to report a sexual assault; Any questioning as to why he did not report, is “victim shaming” * he has been haunted by this rape for 45 years c. PTSD: (1) Military Department Boards for Correction of Military/Naval Records (BCM/NR) as they carefully consider each and every petition brought regarding under other than honorable conditions discharge upgrade requests by veterans claiming PTSD. This includes a comprehensive review of all materials and evidence provided by the applicant. This policy guidance is intended to ease the application process for veterans who are seeking redress and assist the Boards in reaching fair and consistent results in these cases. The guidance also mandates liberal waivers of time limits, ensures timely consideration of petitions, and allows for increased involvement of medical personnel in Board determinations. (2) The new guidance provides that liberal consideration will be given by Military Department Boards for Correction of Military/Naval Records (BCM/NR) in petitions for changes in the characterization of service. The supplemental guidance outlines specifically what type of records and evidence will be given special and liberal consideration by the boards. In light of this guidance and in the spirit of this guidance, the applicant’s case should be reviewed in this light. Any perceived “misconduct” on his part, true or not, should be viewed through this lens. Said another way, the BCNRs are being instructed to re-examine misconduct vis-à-vis mental health issues. He should be afforded this same opportunity. (3) The PTSD Upgrade Memorandum explicitly acknowledges that PTSD was not well understood during Vietnam and that, with regard to PTSD, the records of veterans who served before 1980 tend to be irregular and inaccurate. The Secretary of Defense issued the PTSD Upgrade Memorandum to correct this injustice. Thus, where the criteria listed in the PTSD Upgrade Memorandum are met, applicants have overcome the presumption of regularity. As specified by the PTSD Upgrade Memorandum, we request this Board to give particular weight to medical professionals' opinions, including VA providers, in resolving any doubt that PTSD resulted in a veteran's discharge under other than honorable conditions or in this case, under condition other than honorable. The documents provided by the VA conclude the applicant has PTSD. This case is no different than a Soldier who returns from deployment in Iraq or Afghanistan with PTSD and then receives nonjudicial punishment (NJP). (4) Today, we make allowances and have the mental health programs in place to assist, we did not in 1975. Prior to being assigned to Korea, he did not have an NJP, this is all due to the rape and trauma associated with the event and the subsequent taunting by his rapist. d. Chapter 10: A signature on a chapter 10 request is not enough. In the normal course of a chapter 10, a Soldier would meet with a trial defense attorney in order to review the charge sheet and the elements of the crime. If the trial defense attorney believes a chapter 10 would be in the client’s best interest, then the following MUST occur per Army Regulation (AR) 635-200 (Discharge in Lieu of Trail by Court Martial), chapter 10-2: e. Personal Decision: (1) Commanders will ensure that a Soldier is not coerced into submitting a request for discharge in lieu of trial by court-martial. The Soldier will be given a reasonable time (not less than 72 hours) to consult with consulting counsel (see paragraph 3-7h) and consider the wisdom of submitting such a request for discharge. (2) Consulting counsel will advise the Soldier concerning: * Elements of the offense(s) charged * Burden of proof * Possible defenses * Possible punishments * Provisions of this chapter * Requirements of volunteerism * Type of discharge normally given under the provisions of this chapter * Rights regarding the withdrawal of the Soldier's request * Loss of veterans' benefits * Prejudice in civilian life based upon the characterization of discharge * Consulting counsel may advise the Soldier regarding the merits of this separation action and the offense pending against the Soldier (3) After receiving counseling, the Soldier may elect to submit a request for discharge in lieu of trial by court-martial. The Soldier will sign a written request, certifying that he/she: * Has been counseled * Understands his/her rights * May receive a discharge under other than honorable conditions * Understands the adverse nature of such a discharge and the possible consequences (4) The Soldier also must be advised that pursuant to a delegation of authority per paragraph 1-191, a request for discharge in lieu of trial by court-martial may be approved by the commander exercising special court-martial convening authority general court martial convening authority (GCMCA) (a lower level of approval than the GCMCA or higher authority), but the authority to disapprove a request for discharge in lieu of trial by court-martial may not be delegated. (5) The Soldier's written request will also include an acknowledgment that he/she understands the elements of the offense(s) charged and is guilty of the charge(s) or of a lesser included offense(s) therein contained which also authorizes the imposition of a punitive discharge. (6) The consulting counsel will sign as a witness, indicating that he/she is a commissioned officer of The Judge Advocate General's Corps, unless the request is signed by a civilian counsel representing the Soldier. (7) The applicant does not remember any of this being done, which is a serious procedural error. Given his mental state at the time, post-rape, he was in no position to sign or understand any alleged documents. f. Conclusion: The Army has come a long way in how it treats victims of sexual assault and PTSD. Respectfully, this case, sadly, converges on both. The applicant’s rape is the proximate cause of his “misconduct.” Respectfully, restore his honor and release him from his shame. Upgrade his DD Form 214 to fully honorable service, with an honorable separation code, and by reason of Secretarial plenary authority. 5. The applicant provided the following documents: a. Personal Statement indicating first he would like to sincerely thank the Board for the opportunity to finally explain the true circumstances that led to his discharge. Additionally, he apologizes to fellow Soldiers and buddies that may have been injured by his actions or conduct. (1) When he entered the military in 1973 at the age of 23, he had already served two prison terms and required a “moral waiver” just to enter the military. His father, mother and great uncle were honorably discharged veterans. He thought the military would be a catalyst that would help him change his life for the better. Today, at the age of 70, he realizes just how wrong his thinking was, he knows now that he was the only person who could bring about the change he seeks. (2) “In April 2020 I finally embarked on that journey. I sought help at a Department of Veterans Affairs (VA) Hospital in Las Vegas for a traumatic event that occurred while I was on active duty in the Republic of South Korea in April 1975 and I am grateful for their assistance. This is very difficult for me to write. One night, I was extremely inebriated and awoke to a fellow Soldier sexually assaulting me, he had his penis in my anus. Prior to this incident, I had been a good Soldier. I was the Battalion Alcohol/Drug Education Specialist. I had been given a commendation that was placed in my 201 [File] for outstanding performance in my work. I had many close friends on Camp Long, where I was stationed, Black, White and Korean. This rape changed my life immeasurably. I became paranoid, depressed and obsessed with getting revenge. Unlike today, I didn't know where to turn and I felt incredibly ashamed. Even after the incident, the rapist continued to taunt me. He would come around me and grin and smirk, which only added to my frustration. My job performance suffered as a result of this incident and resulted in my removal as the Battalion Alcohol Drug Education Specialist. I was hardly ever at my duty station at Tech Supply as I knew I could face continued harassment there. As a result of my absence, I received many failures to repair.” (3) “I started to disintegrate both emotionally and physically. I was literally walking around in a haze, my appearance was disheveled, I seldom got a haircut or even shaved, I didn't leave my room. I was eventually put on what we called back then, a ‘pay him no mind list.’ My behavioral issues continued to escalate. I went AWOL for several days in x and I can't really say I had any intention in going AWOL, I just needed to get away from him. I was placed in the stockade on two occasions and I was detained at the “PMO” several times. As a result of my mental deterioration and inability to deal with the trauma from my sexual assault, I also lashed out at my fellow Soldiers. (4) “One afternoon, my First Sergeant…and I became embroiled in a heated altercation in the orderly room and I threatened to "dust his ass off', in front of at least five witnesses including my [commander]. On another occasion, I smashed a Caucasian E-6 over the head with a bottle of wine in a tavern in the village. I often got into fights with military policeman and arguments with my buddies. Understandably, as a result of my behavior the people I had considered friends started to shy away from me. I also assaulted my buddy, a Soldier by the name of Mc______, with a pipe. This resulted in him being medically evacuated to Seoul, Korea. I attempted to cut another Soldier's throat in the Back Tea House with a straight razor. Basically, I had a complete breakdown. In the end, I had no friends and no support whatsoever. I was on an island of misery of my own creation. This is all the result of the sexual assault I experienced. In 1975; it seemed impossible to reach out for support and to tell anyone, let alone my fellow Soldiers, that I had been raped and another man had stuck his penis in my anus. I felt intense humiliation, guilt and despair.” (5) “I understand through my current attorney that for a chapter 10 to occur it means that charges had to be preferred for a court-martial. I do not remember a charge sheet being read to me, maximum punishment ever being explained or the ramifications of a chapter 10. I do not remember any type of conversation going over these matters with an attorney. I realize that this was a long time ago, but I just don't remember this sequence of events. I also know that at the time I was in no frame of mind to be signing documents or that I would have any depth of understanding of any legal ramifications.” (6) “I realize that my case has been reviewed by the Army Discharge Review Board (ADRB) before, and some may question why I didn't bring up the rape before. The truth is, it was shame and an unwillingness to talk about it. However, the pain goes so bad that I went to the VA who assisted me in opening up because holding it in all these years has been like a cancer eating at me.” (7) “All of my transgressions occurred within a 6 month period from April to October 1975. I feel the trauma that I experienced that night directly relates to my subsequent behavior and ultimate discharge from the military. My VA therapist explained to me that I have and continue to suffer from PTSD. The sexual assault was not my fault and my subsequent behavioral issues were my unfortunate response to the trauma that I did not have the ability or support to process at the time. Upon my discharge from the military, I remained lost for a long time. I started to use drugs to numb the pain. In 1990, I entered a men's shelter where I lived for 5 years. In 1998, I heard the Narcotics Anonymous message and I have been clean for 22 years. I am proud of my sobriety, but the nightmares, flashbacks, and sleepless nights still plague me on a regular basis and deeply effect my well-being.” (8) “I humbly beseech this Board to rule in favor of my request to upgrade my discharge and in this way at least make me somewhat whole again.” b. Two character references from the following individuals: (1) On 8 July 2020, Mr. B stated he is the applicant’s best friend. He is an honorably discharged Army veteran and he understands the importance of the occasion. He met the applicant in 1959, when the applicant and his family move to the Bronx, NY, with his family he was age 7 and the applicant was age 9. The applicant had two brothers and two sisters. The applicant and his brothers were fiercely protective of their little sisters. As a young boy the applicant was a nice kid and a good friend he didn't bother anyone and by the same token you didn't bother him either. (2) He was a typical kid, inquisitive and a bit mischievous, but rarely got into serious trouble. Around age 14, during the applicant’s first year of high school he wasn't around much he was hanging in Harlem more and more. When he did see the applicant he was always in a hurry and didn't have time to chat. One day in late 1964 he realized why. The applicant had begun using heroin. The applicant’s whole attitude had changed. After the applicant’s addiction they were not as close as they were, but he would see the applicant every now and again. (3) Between 1970 and 1972, the applicant had gone to prison twice and in 1973 he joined the Army. He thought the applicant had gotten his life back on track. In 1975 he came home from Korea an animal. He truly didn't know the applicant anymore. In fact, he was a little afraid for and of the applicant. The applicant had a look of desperation and hopelessness about him and the things that he was doing were insane. He carried a gun on his person and he would rob anyone unexpectedly without question. He robbed people that he had known for years, he robbed numerous spots, drug dealers, fast food places, gas stations, candy stores, and people in elevators, there was no area he would not cross. No one felt safe around him. It's only through the grace of God Almighty that he wasn't caught or killed. (4) As his addiction progressed he became homeless and lived in a x Shelter for 5 years. He would periodically see the applicant on the street and he was a wreck. The applicant was on a methadone program the last time that he saw him in 1989 and was working at an automobile parts store in the Bronx. It was 9 years before he heard from the applicant again. He was living in Las Vegas and got a call from the applicant one day. The applicant had been clean from drugs for a few months and was coming to Vegas to visit his son. He welcomed the applicant with open arms. (5) The applicant got a job in Las Vegas and stays to himself pretty much. The applicant has grown over the years. The applicant went to Real Estate School, become a realtor in Las Vegas, and joined the labor union. The applicant has gotten married to his second wife and reached out to the VA for help with a problem which he has not yet divulged to him. (6) Since 1998 the applicant has been on a journey to clean up his life and make right the wrongs he has done. He has never seen someone struggle the way the applicant has and anything but a favorable conclusion to his request to upgrade his discharge would be unconscionable and just wrong. c. On 21 August 2020, Mr. D stated the applicant has demonstrated resilience. He will stumble and fall, but he will always fight to stand. He also met the applicant in the Bronx, NY, in 1959. The applicant was a well-liked Catholic school boy. But like many kids in those days he was swallowed up by the street and the pain and misery it offered. No matter what he was going through they always remained friends. When he returned from the military he was out of control. (1) In 1998, he met up with the applicant at a Narcotics Anonymous meeting. He held the applicant’s hand during his first year of sobriety in Narcotics Anonymous. It was the applicant’s first meeting since being released from VA rehabilitation in Montrose, NY. He struggled through some truly rough times but in Narcotics Anonymous he seemed to find himself. He got a sponsor, worked the steps and lived one day at a time. The applicant did tell him about his inability to sleep, his anxiety, and depression. To this day he does not know the intricate circumstances of his situation, all he has to say is that he believes the applicant suffers from PTSD. (2) Mr. M respectfully requests that the applicant’s discharge be upgraded. The applicant has suffered enough and he does not see him improving very much beyond where he is today, certainly not to the point he used to be. d. Letter of Commendation, dated 21 October 1974, thanking him for his exceptional contribution to the Drug and Alcohol Program of the 307th Signal Battalion and outstanding performance during the period of June and October 1974. Additionally, the letter states: (1) His resourcefulness in approaching newly assigned tasks and his general understanding in the area of drug and alcohol were evident in the expedient, accurate, and very professional manner in which his work was accomplished. (2) The innovation of several new procedures within the section were attributed to his logic. Accomplishments of this nature were not normally expected from a Soldier of his grade and experience. (3) “Thank you for a job well done. Your accomplishments in the Drug and Alcohol Office and your high state of awareness toward people is in keeping with the highest traditions of the military service and reflect great credit upon yourself and the U.S. Army.” e. VISTA Electronic Medical Documents-Progress Notes, 53 pages of 55, dated between January and September 2020. (1) Page 48 of his Progress Notes show that he is a 70 year old male. On 30 January 2020, he presented for a diagnostic assessment due to military sexual trauma (MST). He was allowed mental health treatment only. He reported no prior mental health treatment. However, he was hospitalized in 1978 for a suicide attempt by “OD.” He had one other “SA” in 1984 where his family found him but he was not hospitalized. None since then. (2) He had legal issues in 1970 prior to entering the military, he was in prison for 2 years due to drug possession. He had one driving under the influence offense in 2005 and he was in jail 2 days. He has been clean and sober since then, for the past 21 years attending Narcotics Anonymous, going to meetings and having a sponsor. He found out that he could go to the VA for MST services through U-Tube. He is trying to have his discharge upgraded for additional services, but he is not eligible at this time. He denies “SI/HI” or “AVH,” at this time. He reported passive “SI” sometimes but no plan or intent. He is legally blind and disabled. He is the caregiver for his 95 year old mother and that is who he rents an apartment with and shares rent. He is currently not at risk of homelessness. He has symptoms that meet the criteria of PTSD. (3) Initial DSM-V Diagnosis: Chronic PTSD. 6. On 5 November 1973, the applicant enlisted in the Regular Army for 3 years with a moral waiver. He completed the training requirements and he was awarded military occupational specialty 76U (Communications Electronic Repair Parts Specialist). 7. While attending training at the Quartermaster School, Fort Lee, VA, he accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ): a. On 20 March 1974, for absenting himself from his unit from 2 to 17 March 1974. His punishment consisted of a forfeiture of $75 pay and 14 days of extra duty. b. On 3 April 1974, for failing to go to his appointed place of duty at the time prescribed on 23 and 25 March 1974. His punishment consisted of a forfeiture of $100 pay for 2 months. 8. On 23 June 1974, he was assigned to Headquarters and Headquarters Company, 307th Signal Battalion, Korea. 9. On 25 April 1975, he accepted NJP under Article 15, UCMJ, for being absent without authority (AWOL) from 16 to 18 April and for being absent from his unit between 1700 and 0800 hours on 19 April 1975. His punishment consisted of a forfeiture of $90 pay and 7 days of restriction. 10. On 14 July 1975, court-martial charges were preferred against the applicant for: * Failing to obey a lawful order to produce his identification card when ordered to do so by a military policeman (MP), on 21 June 1975 * Assaulting an MP by spitting in his face while in the execution of his MP duties, on 21 June 1975 * Resisting apprehension by MPs, on 21 June 1975 * Being AWOL from his unit from 8 to 11 July 1975 * Being disrespectful in language toward his first sergeant, a noncommissioned officer, by saying to him, “Take off them stripes and I'll kick your little ass all over this place” a. On 24 July 1975, additional charges were filed against him for disobeying an order given by a commissioned officer to stay within the limits of his unit on 21 July 1975 and for failing to go to his appointed place of duty at the time prescribed on 22 July 1975. b. On 29 July 1975, following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, AR 635-200 (Personnel Separations – Enlisted Personnel). He submitted no statements in his behalf. He acknowledged he: (1) Had not been subjected to any coercion with respect to his request for discharge and he had been advised of the implications that were attached to the discharge. (2) Understood he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. (3) Understood that, as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, he may be ineligible for many or all benefits administered by the VA, and he may be deprived of his rights and benefits as a veteran under both Federal and State laws. (4) Understood that he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge. (5) This document is signed by both the applicant and The Judge Advocate General. c. The applicant’s chain of command recommended trial by a special court-martial. His character of service prior to the offense(s) for which he had been charged was “fair.” d. A Report of Medical Examination, dated 12 August 1975, shows he was not qualified for separation at the time, he required a 10 day treatment for “RPP.” e. On 15 August 1975, the applicant’s discharge was reviewed with him and he was advised he was being issued an undesirable discharge. He was also advised that he could appeal to the ADRB for an upgrade of his discharge within 15 years after the effective date of discharge. This document is signed by the applicant and counsel. f. On 15 August 1975, he signed a Statement of Medical Condition acknowledging there had been no change in his medical condition. 11. The separation authority granted the applicant’s request for discharge in lieu of court-martial. Directed the applicants' reduction to private/E-1 and approved his request for discharge for the good of the service under the provisions of chapter 10, AR 635-200, with an Undesirable Discharge Certificate. 12. Accordingly, on 15 August 1975, he was discharged. His DD Form 214 confirms he completed 1 year, 8 months, and 25 days of active service. He also had 19 days of lost time. His authorized awards are listed as the National Defense Service Medal and Marksman Marksmanship Qualification Badge (Rifle). His DD Form 214 also shows in: * Authority and Reason, Chapter 10, “AR 635-200, SPD “KFS” [In Lieu of Trial by Court-Martial] * Character of Service, “Under Conditions Other Than Honorable” * Reenlistment Code, “RE-4” 13. Army Regulation 635-200, chapter 10, authorizes a voluntary discharge request in- lieu of trial by court martial. In doing so, he would have waived his opportunity to appear before a court-martial and risk a felony conviction. An under other than honorable conditions discharge is authorized and normally considered appropriate; however, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service, he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 14. Based on the above circumstances, consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and of the possibility of prejudice in civilian life because of the characterization of such a discharge. The available evidence shows this guidance was followed. 15. The SPD code of “KFS” and the reentry code of “4” on the DD Form 214 are based on the separation authority. Per the version of AR 635-5-1 (SPD Codes), in effect at the time of the applicant’s discharge, if the separation authority is AR 635-200, chapter 10, the required narrative reason for separation is “In Lieu of Court-Martial.” An RE-4 applies to persons not qualified for continued service by virtue of being separated from the service with non-waivable disqualifications. 16. 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. 17. On 8 October 1982, the ADRB denied his petition to upgrade his discharge, determining the evidence presented did not demonstrate the existence of a probable error or injustice and the overall merits of the case were insufficient as a basis for correction of his records. 18. In reaching its determination, the Board can consider the applicant’s petition, his contentions of PTSD, submissions, and service record in accordance with the published equity, injustice, or clemency guidance. 19. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. A review of his service record indicates he completed a separation physical on 12 August 1975 and was cleared for administrative separation. A review of the VA's Joint Legacy Viewer indicates he was seen from July through October 1998 for the diagnoses of Alcohol Dependence and Unspecified Drug Dependence. On 30 January 2020, he was evaluated due to reported MST while stationed in Korea. He reported drug use prior to joining the military and served two years in prison in 1970 due to drug possession. He was diagnosed with PTSD (MST) and Depression. On 23 November 2020, he reported improvement in symptoms and determined he no longer needed behavioral health services. In accordance with the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 August 2017 Clarifying Guidance there is documentation to support a behavioral health diagnosis at the time of his discharge. He met retention standards at the time of his discharge. Under liberal guidance, PTSD is considered a mitigating factor for the misconduct that led to his discharge, except for assaulting an MP. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's and his counsel's statements, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for his separation. 2. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA Medical Advisor. The Board concurred with the conclusion of the medical advising official regarding his misconduct being mitigated by PTSD, with the exception of assault. Given the unique circumstances in this case (i.e., PTSD resulting from MST), the Board determined, based on a preponderance of evidence, the applicant's character of service should be changed to under honorable conditions (general) and the reason for his separation should be changed to Secretarial authority. Because the basis for his reduction to the lowest enlisted grade was the original character of service, relief will also entail restoration of his rank/grade to specialist four (SP4)/E-4. 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 his DD Form 214 to show the following entries: * Grade, rate, or rank – "SP4" * Pay grade – "E-4" * Effective date of pay grade – unknown, leave blank * Separation authority: "AR 635-200, Chap 5" * Separation code: KFF * Narrative reason for separation: "Secretarial authority" * Character of service: "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 an honorable character of service. 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. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR. Table 3-1 includes a list of the RA RE codes: a. RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army. They are qualified for enlistment if all other criteria are met. b. RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. They are ineligible unless a waiver is granted. c. RE-4 applies to persons not qualified for continued service by virtue of being separated from the service with non-waivable disqualifications. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 4. AR 635-200 set forth the basic authority for the administrative separation of enlisted personnel. a. A Chapter 10 is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 5. On 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 under other than honorable conditions 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. 6. 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 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. 7. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210010609 15 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1