IN THE CASE OF:  
BOARD DATE:   8 July 2022
DOCKET NUMBER:  AR20210010797 


APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

•DD Form 149 (Application for Correction of Military Record)

•Applicant Self-Authored Letter, dated 23 March 2021



FACTS: 

1.Standard of Review. When arriving at its findings and making its determinations, theBoard shall review the petition for requested relief independent from any previouspetitions submitted to the Army Review Discharge Board or the Army Board forCorrection of Military Records (ABCMR).

2.The applicant states during advanced individual training (AIT), he was sexually,mentally and physically assaulted by other members in his platoon. One person heldhim down while another stuck his penis in his mouth. They stated, "I must not likewomen and want something to suck on, so they were going to give it to me." Wheneversomeone would try to touch him, he would try to make them step back; however, theywould beat him down and violate him anally or orally. This was retaliation for an incidentthat occurred in basic training between his battle buddy and a girl.

a.When he spoke to an interviewer, he did not want to disclose the above

information because it was hard to experience the first time and hates bringing it up. He told her about being physically abused but didn't think he would have to bring up the sexual assault in detail. He is a heterosexual man and rather forget this part of his life. b. The applicant attempted to kill himself by trying to overdose to get away from his attackers. Major , U.S. Air Force admitted him into Brooke Army Medical Center after the assault for a few days for stomach issues, depression, and attempting to take his life. Since then, his life has not been the same. He reached out to numerous people to get help, however, no one believed his attackers would ever do anything like this. 
These incidents also happened during the "don't ask, don't tell" era. He went absent without leave (AWOL) to get away from his abusers.  

c.He has been diagnosed with Obsessive Compulsive Disorder (OCD), Post-Traumatic Stress Disorder (PTSD), anxiety, Major Depressive Disorder, and Attention Deficit Disorder (ADD). He has to have "control" because of how it was taken away from him. His ADD coincides with OCD since he focuses on the past and feels "stuck." Medicine helps him get by for a day which "calm down my thoughts." The anxiety coincides with PTSD because he is always "nervous," afraid, and has stomach and heart pain. His anxiety stems from what happened to him and fears it would happen again. He feels like someone is "out to get me" all the time. He has documented cases of anxiety the Brooke Army Medical Center. He still takes medication to try to regulate his feelings.  

d.The ADD coincides with PTSD because his is always in a "mood." Since hisassault and rape, there have been plenty of times he wished he was dead. He does not particularly appreciate being bothered by people or does too much of anything. He prefers to stay to himself because he knows he won't hurt himself. His life has been like hell since the rape, assault, mental and physical abuse.  

e.The applicant was approved for disability due to the trauma on his body from hisabusers. He was not given an "official rating" and instead was given just the benefits to see a doctor. His medical records, since the military, coincide with the abuse and medication he takes on a daily basis. He can't keep friends and ended up divorced because of how he sees things now. He never had these issues before the military and struggles every day.  

3.On 3 January 2003, at the age of 19 years, 8 months, and 18 days, the applicantenlisted in the Regular Army in the rank of private first class (PFC/E-3) for a period of4 years.

a.On 2 August 2003, while in a trainee status his duty status changed from present



for duty (PDY) to AWOL. b. On 2 September 2003, his duty status changed from AWOL to dropped from rolls (DFR) and declared a deserter. On the same date, his immediate commander preferred court-martial charges against him for being AWOL on or about 2 August 2003 until present. 4. A DD Form 616 (Report of Return of Absentee), dated 28 October 2003, shows the applicant was apprehended at 2233 hours by civil authorities. Due to failure to pay a fine, he was confined in  Jail,  pending disposition of charges.















5.On 3 November 2003, the applicant appeared in Circuit Court, , he paid the fine, was granted credit for time served, and transferred to the Personnel Control Facility, Fort Knox, KY.6.A DA Form 3975 (Military Police Report), shows on 28 October 2003, they were notified that the applicant was apprehended by the Mobile Police Department at2233 hours for a federal desertion warrant.7.On 6 November 2003, his duty status changed from DFR to PDY effective3 November 2003. Court-martial charges were preferred against him for being AWOL from on or about 2 August 2003 to on or about 6 November 2003, and forwarded with a recommendation for a special court-martial empowered to adjudge a bad-conduct discharge.8.On 7 November 2003, his duty status changed from confined civilian authority to PDY effective 3 November 2003. [Based on the DD Form 616, dated 28 October 2003 and orders dated 7 November 2003, his duty status should have been changed from DFR to CCA on 28 October 2003 and CCA to PDY on 3 November 2003].9.Orders, dated 7 November 2003, shows he was assigned to the U.S. Army Personnel Control Facility, Fort Knox, KY effective 28 October 2003.10.On an unknown date, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation(AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of AR 635-200, Chapter 10. Due to subsequent missing page(s) it is unknown if the applicant elected to submit a statement in his own behalf.11.His available record is void of a separation examination and/or a mental health status report. However, on 30 September 2021, the Army Review Boards Agency requested a copy of medical documents from the applicant to support his issue of mental health, however he did not provide medical evidence in support of his application.12.On 7 November 2003, the Headquarters, U.S. Army Personnel Control Facility, commander recommended approval of the applicant’s request for discharge and a discharge UOTHC. His conduct rendered him triable by court-martial under circumstances which could have led to a bad conduct or dishonorable discharge. There did not appear to be any reasonable ground to believe that he was, at the time of his misconduct, mentally defective, deranged or abnormal.

13.On 10 November 2003, the separation authority approved the applicant's requestfor discharge in lieu of trail by court-martial under the provisions of Chapter 10, AR 635-200, with an UOTHC discharge and reduction to the rank of private (PVT/E-1).

14.Orders, dated 12 November 2003, reduced him in rank from private first class(PFC/E-3) to PVT.

15.Orders dated 17 November 2003, assigned him to the U.S. Army Transition Point,Fort Knox, KY effective 19 November 2003 for separation processing.

16.On 19 November 2003, he was discharged accordingly. His DD Form 214(Certificate of Release or Discharge from Active Duty), shows he was discharged fromactive duty under the provisions of AR 635-200, Chapter 10 (In Lieu of Trial by Court-Martial) with an UOTHC characterization of service. He completed 7 months and14 days of net active service during this period with lost time from 2 August -2 November 2003 (93 days). He was not awarded or authorized an award.

17.Clemency guidance to the Boards for Correction of Military/Navy Records(BCM/NR) does not mandate relief, but rather provides standards and principles toguide Boards in application of their equitable relief authority to ensure each case will beassessed on its own merits. In determining whether to grant relief BCM/NRs shallconsider the prospect for rehabilitation, external evidence, sworn testimony, policychanges, relative severity of misconduct, mental and behavioral health conditions,official governmental acknowledgement that a relevant error or injustice was committed,and uniformity of punishment. This includes consideration of changes in policy, wherebya service member under the same circumstances today would reasonably be expectedto receive a more favorable outcome.

a.In regards to the applicant's request for a personal appearance, AR 15-185(ABCMR), states an applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. 

b.AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trialby court martial. In doing so, he would have waived his opportunity to appear before a court-martial and risk a felony conviction. An UOTHC 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. 

c.The applicant requests a discharge upgrade to receive all Veterans Affairsbenefits he would have received if nothing happened to him. 

d.His records show, after 4 months and 17 days in AIT he went AWOL for over3 months. While in a trainee status he consulted with counsel and voluntarily requested to be discharged in-lieu of trial by court-martial. He was separated in a trainee status and completed 7 months and 14 days of his 4-year contractual obligation. 

e.In regards to his contention of mental health issues.

(1)His records are void of a separation examination and a mental health report.On 30 September 2021, the Army Review Boards Agency requested a copy of medical documents from the applicant to support his mental health issues of PTSD, Major Depressive Disorder, OCD, and ADD, however he did not provide medical evidence to support his statement of mental health issues. 

(2)The Office of the Undersecretary of Defense for Personnel and Readinessprovides guidance that 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, Traumatic Brain Injury (TBI), PTSD, sexual harassment and sexual assault. 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. 

f.The ABCMR does not grant requests for upgrade of discharges solely for thepurpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 

g.Boards are to give liberal consideration to veterans petitioning for discharge reliefwhen the application for relief is based in whole or in part of 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. 

18.Published guidance to the BCM/NRs clearly indicates that the guidance is notintended to interfere or impede on the Board's statutory independence. The Board willdetermine the relative weight of the action that led to the discharge and whether itsupports relief or not. In reaching its determination, the Board shall consider theapplicant's petition, available records and/or submitted documents in support of thepetition.





19. MEDICAL REVIEW:The applicant is applying to the ABCMR requesting discharge upgrade contending that the misconduct leading to his Under Other Than Honorable Conditions discharge was due to PTSD and Depression he developed and physical assault/MST he experienced during his time in service.  a. The Agency psychologist was asked by the ABCMR to review this request. Documentation reviewed includes the applicant’s completed DD149 and supporting documentation and his military separation packet. The VA electronic medical record, Joint Legacy Viewer (JLV) was also reviewed. The military electronic medical record (AHLTA) was not reviewed as it was not in use during his time in service. No hard copy military medical records or civilian medical documentation was provided for review.  b. Review of the applicant’s military documentation indicates that he enlisted in the Army Reserve (Delayed Entry Program) on 23 Oct 2002 and subsequently transferred to the Regular Army on 03 Jan 2003. During his time in service, there were no awards indicated on the DD-214. No job specialty had been established as well. A Charge Sheet (02 Sep 2003) cited him for being absent without leave (AWOL) from 02 Aug 2003 - present, while assigned to Company F, 232 Medical Battalion, Fort Sam Houston, TX. He was picked up by the Police Department, on 28 Oct 2003 and returned to duty on 03 Nov 2003. A Request for Discharge in Lieu of Trial by Courts-Martial was forwarded to the Commander, US Army Garrison, Fort Knox, KY on 07 Nov 2003 and was subsequently approved. He received an Under Other Than Honorable Conditions discharge on 19 Nov 2003 with DD-214 Narrative Reason for Separation, In Lieu of Trial by Court-Martial. c. The VA electronic medical record, Joint Legacy Viewer (JLV) did not indicate anyservice connected disability(s). However, rated disabilities included Flat Foot Condition 10%, Superficial Scars 10%, Paralysis of Sciatic Nerve 10% and Lumbosacral or Cervical Strain 10%. A Social Work Note (09 Sep 2021) indicated, “Mr.  says that he has been doing about the same. Noted that he continues to isolate …as he remains irritable. Noted a recent incident with his boss in which his boss called him after hours to do some minor work. Veteran noted increased anger with his boss as his boss reminds him a lot of one of his superiors in the military…Mr. is (38) year old male with a diagnosis of Chronic PTSD.” Another Social Work Note (04 Oct 2021) indicated, “Mr. says that things have been about the same. Noted that his mood is low mostly because of his hurting. He says that his appointment is supposed to have surgery to address injuries that occurred while he was in the military. Noted that he recently went to the Vet Center and will start therapy to address MST. Noted that he may as well talk about what happened as appears to continue to come up.” The Problem List included Obstructive Sleep Apnea (adult)(pediatric) (20 Sep 2021) and Posttraumatic Stress Disorder, Chronic (17 Aug 2021).    
d.Based on the available information and in accordance with the LiberalConsideration guidance, it is the opinion of the Agency psychologist that the applicant has a mitigating Behavioral Health condition, Posttraumatic Stress Disorder/MST. As there is an association between PTSD/MST and avoidant behavior, there is a nexus between applicant’s condition and his AWOL episode from his unit. Chronological review of his military career indicates a dramatic change in the applicant’s motivation, temperament and level of instability occurred following his MST and physical assaults/emotional abuse. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers who develop PTSD and experience MST in conjunction with physical/emotional abuse from other soldiers in a noncombat military environment.  e.Kurta Questions

(1)The applicant did have a condition that may excuse or mitigate the discharge (i.e.Posttraumatic Stress Disorder/MST).

(2)The PTSD/MST condition, as well as physical assaults, did exist and thetraumatic events occurred during military service.

(3)Finally, the PTSD/MST condition along with physical assaults actually doesexcuse or mitigate the discharge – PTSD/MST mitigates for his period of goingAWOL from his unit. A discharge upgrade is recommended.

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 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.  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 to show under honorable conditions (General). 

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

:X    :X    :X      GRANT FULL RELIEF 

:     :     :       GRANT PARTIAL RELIEF 

:     :     :       GRANT FORMAL HEARING 

:     :     :       DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 19 November 2003 showing his character of service as under honorable conditions (General). 





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 State Code, section 1556 provides the Secretary of the Army shallensure that an applicant seeking corrective action by the Army Review Boards Agency(ARBA) is provided a copy of all correspondence and communications, includingsummaries of verbal communications, with any agencies or persons external to agencyor board, or a member of the staff of the agency or Board, that directly pertains to or hasmaterial effect on the applicant's case, except as authorized by statute.

2.AR 15-185 (ABCMR), prescribes the policies and procedures for correction ofmilitary records by the Secretary of the Army, acting through the ABCMR. The ABCMR
has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 

3.AR 635-200 (Personnel Separations - Enlisted Separations), in effect at the time, setforth the basic authority for the separation of enlisted personnel, it states:

a.A Chapter 10 (Discharge in Lieu of Trial by Court Martial) is applicable tomembers 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. The honorablecharacterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel.  

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. 

d.A discharge UOTHC is an administrative separation from the service underconditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. 

e.When a Soldier is to be discharged UOTHC, the separation authority would directan immediate reduction to the lowest enlisted grade. 

4.On 3 September 2014 the Secretary of Defense directed the Service DischargeReview Boards (DRBs) and Service Boards for Correction of Military/Naval Records(BCM/NRs) to carefully consider the revised PTSD criteria, detailed medicalconsiderations and mitigating factors when taking action on applications from formerservice members administratively discharged UOTHC and who have been diagnosedwith PTSD by a competent mental health professional representing a civilian healthcareprovider in order to determine if it would be appropriate to upgrade the characterizationof the applicant's service.

5.On 25 August 2017 the Office of the Undersecretary of Defense for Personnel andReadiness issued clarifying guidance for the Secretary of Defense Directive to DRBsand BCM/NRs when considering requests by Veterans for modification of theirdischarges 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. 

6.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemencydeterminations. Clemency generally refers to relief specifically granted from a criminalsentence. 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 maybe warranted based on equity or relief from injustice.

a.This guidance does not mandate relief, but rather provides standards andprinciples 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 ofservice 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//