IN THE CASE OF: BOARD DATE: 25 October 2022 DOCKET NUMBER: AR20210011472 APPLICANT REQUESTS: * upgrade of his under other than honorable conditions discharge to honorable * reinstatement of his rank to specialist (SPC) * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Army Discharge Review Board (ADRB)) * Self-Authored Letter * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant, in his application and self-authored letter, states in effect: a. On his application the applicant indicates he has post-traumatic stress disorder (PTSD), other mental health issues, and was sexually assaulted or harassed. b. He would like a review of his discharge ranking. c. At the time of the incident, he was unaware of his options. He was led to believe his only option was to be discharged with a rank demotion. d. He was in close contact with his battalion commander and first sergeant trying to extend his leave by a couple of days. He was led to believe his leave had been extended. e. The county sheriff, who is a family friend, informed him he had a warrant and the applicant turned himself in. He was then put on a bus to voluntarily turn himself in at Fort Knox. He turned himself in at the gates and the court-martial process began. f. He would like to reinstatement of his rank to SPC and an upgrade of his discharge to honorable. 3. On 20 March 2002, the applicant enlisted in the US Army Reserve (USAR) Delayed Entry Program (DEP), at the age of 19 years old, for a period of 8 years. On 5 June 2002, the applicant was discharged from the USAR DEP and entered active duty for a period of 3 years. Along with his enlistment, the applicant received a Report of Medical Examination, which shows he had no medical issues and was qualified for enlistment in the Army. 4. The applicant's DA Form 2-1 (Personnel Qualification Record) does not show his basic training or advanced individual training dates; however it shows his first duty station was Fort Wainwright, Alaska. 5. On 6 May 2003, the applicant extended his enlistment for 15 months. 6. On 21 January 2004, the applicant's duty status was changed from present for duty (PDY) to absent without leave (AWOL). On 19 February 2004, his duty status was changed from AWOL to dropped from rolls (DFR). On 21 March 2004, a Report of Return of Absentee was completed showing the applicant was apprehended by civilian authorities and transferred to the Fort Knox Personnel Control Facility (PCF). On 21 March 2004, his duty status was changed from DFR to attached/PDY. 7. On 26 March 2004, orders were published assigning the application to the Fort Knox PCF. 8. On 29 March 2004, the PCF commander preferred a court-martial charge against the applicant for being AWOL from on or about 21 January 2004 to on or about 21 March 2004. 9. On 29 March 2004, the applicant requested a discharge in lieu of trial by court- martial under the provisions of Army Regulation 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 and his available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, chapter 10. He acknowledged he could be ineligible for many or all Army and/or Veterans Affairs Benefits. He elected not to submit a statement on his own behalf. 10. The applicant's chain of command recommended approval of the applicant's request to be discharge and on 31 March 2004 the appropriate approval authority approved the applicant's request and directed an under other than honorable conditions discharge and directed he be reduced to the grade of Private/E1. 11. On 7 April 2004, the applicant was discharged accordingly. His DD Form 214 shows he had completed 1 year, 8 months, and 3 days of his 3-year contractual obligation. He was awarded or authorized the National Defense Service Medal, Global War on Terrorism Service Medal, and Army Service Ribbon. 12. The applicant is requesting an upgrade of his discharge and reinstatement of his rank to SPC. He believed his leave had been extended and did not know he was AWOL until the county sheriff, a family friend, informed him there was a warrant for his arrest. He indicates on his application he suffered from PTSD, other mental health issues, and sexual assault/harassment. a. The applicant's service record was void of documentation showing he suffered from PTSD, other mental health issues, or sexual assault/harassment. The applicant did not provide information regarding these issues. b. The applicant's service record was void of a leave form showing he was on leave prior to going AWOL or that his leave had been extended. c. During the applicant's era of service, Soldiers charged with UCMJ violations that carried a punitive discharge among its maximum punishments could request separation under chapter 10, Army Regulation 635-200; such requests were voluntary and offered in-lieu of trial by court-martial. AWOL for more than 30 days has as part of its maximum punishment a punitive discharge. d. Army Regulation 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. e. 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. 13. MEDICAL REVIEW: a. 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 he developed and sexual assault/harassment he experienced during his time in service. b. 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) and the Interactive Personnel Electronic Records Management System (IPERMS) were also reviewed. The military electronic medical record (AHLTA) was reviewed, but there was an absence of any medical or behavioral health notes. No hard copy military medical records or civilian medical documentation was provided for review. c. Review of the applicant’s military documentation indicates that he enlisted in the Army Reserve (Delayed Entry Program) on 20 Mar 2002 and subsequently transferred to the Regular Army on 05 Jun 2002. During his service, his awards included the National Defense Service Medal, Global War on Terrorism Service Medal and Army Service Ribbon. His job assignment was as an Infantryman. A Charge Sheet, dated 29 Mar 2004, indicated he had been absent without leave from 21 Jan 2004 - 21 Mar 2004 while assigned to Company A, 1st Battalion, 7th Infantry, Fort Wainwright, AK. He submitted a Request for Discharge in Lieu of Trial by Court-Martial on 29 Mar 2004. He received an Under Other Than Honorable Conditions discharge on 07 Apr 2004 with narrative reason, In Lieu of Trial by Court-Martial. d. The ABCMR application included an accompanying letter. He noted, “at the time of the incident, I was unaware of my options. I was led to believe my only option was to be discharged with a rank demotion.” e. The VA electronic medical record, Joint Legacy Viewer (JLV) did not indicate any service connected disability(s). There were no behavioral health notes indicated in JLV, as well as an absence of entries on the problem list. f. Based on the available information and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency psychologist that the applicant has a mitigating Behavioral Health condition, MST. As there is an association between an MST and avoidant behavior, there is a nexus between applicant’s symptoms and his AWOL period from his unit. Chronological review of his military career indicates a dramatic change in the applicant’s motivation and temperament occurred during his time in service. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers who experience an MST in a noncombat military environment. A discharge upgrade is recommended. BOARD DISCUSSION: 1. The applicant's request for a personal appearance was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance before the Board is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that partial relief was warranted. The Board carefully considered the applicant's request, supporting documents, evidence in the records, medical advisory and published DoD guidance for consideration of discharge upgrade requests. The Board concurred with the advisory finding that the applicant has a mitigating Behavioral Health condition. Based on the preponderance of documentation available for review, the Board determined the evidence presented sufficient to warrant a recommendation for partial relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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 the applicant a DD Form 214 for the period ending 5 June 2002 showing: * Grade, Rate, or Rank: SPEC * Characterization of Service: Under Honorable Conditions (General) • Separation Authority: No change • Separation Code: No change • Reentry (RE) Code: No change • Narrative Reason for Separation: No change 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, U.S. 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 Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable character of service represented a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service had generally met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 permitted a Soldier to request discharge in lieu of trial by court-martial when they had committed an offense or offenses which, under the UCMJ, included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Once approved, an under other than honorable conditions discharge was normally furnished, but the discharge authority could direct a general discharge, if warranted. 4. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. In chapter 7, it stated Soldiers approved for an under other than honorable conditions discharge were to be reduced to the lowest enlisted grade. 5. The Manual for Courts-Martial, Appendix 12 (Maximum Punishment Chart) showed a punitive discharge was an available maximum punishment for AWOL over 30 days. 6. 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. 7. 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. 8. 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) AR20210011472 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1