IN THE CASE OF: BOARD DATE: 13 January 2022 DOCKET NUMBER: AR20210012417 APPLICANT REQUESTS: An upgrade of his character of service from under honorable conditions (general) to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Affidavit * Letter from the Department of Veterans Affairs (VA) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he was a victim of sexual assault and expedited discharge. 3. The applicant provides an Affidavit of Events, which states: a. As the Board may have noticed from his records, his discharge was through the Expeditious Discharge Program (EDP) for "failure to maintain acceptable standards for retention." EDP is not a practice associated with nonjudicial punishment (NJP) and absence without leave (AWOL) nor is being given an under honorable conditions (general) discharge typical of EDP. He most likely would have been dishonorably discharged for going AWOL. He contends he was given an under honorable conditions (general) discharge because him being AWOL was in part due to the misconduct of higher ranking individuals. He contends the reason he was given a general discharge is because the events he experienced were egregious and far outside Army standards of conduct. His experience may not justify him going AWOL, but it does strongly account for mental health symptoms he began to experience during and directly following his time in service and that he continues to experience them today. b. The circumstances that led to his failure in the Army was that higher ranking noncommissioned officers (NCO) did not maintain proper boundaries between themselves, him, and his wife. These were Soldiers with positions of power and influence over his circumstances, while in service. He found himself in a position to make choices he would not have had to make if the NCOs had maintained appropriate conduct. To be concise, he had a gun pointed in his face by a staff sergeant (SSG). He was told that his wife would continue with her relationship and that the applicant was not to interfere in any way or report what was happening or the NCO would make the applicant disappear. c. The chain of events that led to his being threatened with a gun was a slow progression of inappropriate behaviors and breaking boundaries by higher ranking Soldiers. He had moved off base with his wife and daughter. The SSG and another went to his house to socialize, which he did not see as a problem at age 17. This was a boundary issue, and it became clear this was a problem when the SSG and other became interested in his wife. d. He now recognizes he and his wife were both victims. They were both raised in less than optimal households. His wife was vulnerable to the flattery of the Soldiers. The applicant was vulnerable to intimidation and persuasion. The SSG and a specialist (SPC) began visiting his apartment and his wife while the applicant was on duty. They became brazen and didn't bother to hide the inappropriate sexual behavior that developed. His wife became involved with as many as four Soldiers, and it didn't matter if he was home or not. The applicant lost control of his home and in what was perpetrated against he and his wife. e. The applicant believes the SSG and SPC began to worry they would get caught and rather than try to cover up the offenses, they sought to make the applicant a co- conspirator, which at the time, he believed they accomplished. They made having sex with his wife common place. They and others had sex with his wife in front of him, and they also directed he have sex with his wife in front of them. This deviant behavior continued while he drove to the airport with his daughter in the car, sexual activity was going on in the back seat. f. One may ask how he could have done this, even allowed it and he asks that of himself, to this day. Consider he and his wife were 17 years old. He realizes now he should have never been in the position to weigh those consequences of not following their directions, or in the reporting of higher ranking Soldiers having sex with his wife to begin with. He was frightened of the Soldiers. They were brazen enough to go to his home and have sex with his wife, and who is to say they wouldn't carry out retaliation against him. g. As he had suspected would happen, when he tried to stop the behavior he was threatened. As he mentioned, he already had a gun pointed at him by the SSG and his life threatened if he were to say anything. By this time, his marriage was destroyed and his wife and daughter moved with the assistance of the SSG. Having his wife out of the area served the SSG by making it less likely his wife would report the SSG, and the applicant believes his wife thought the SSG loved her. Imagine trying to do your job while these events are occurring, and those in the position of power over you had perpetrated this. Again, the applicant was 17 years old at the time. h. The applicant went AWOL and tried to find his daughter and wife. His wife had returned to her hometown and was getting some support for the applicant's parents based on the narrative his wife had given them. His parents prioritized keeping contact with the applicant's daughter, their granddaughter. The applicant left out important details of the event that led his wife to to them because he was ashamed. Leaving out those details made his explanation hard to follow and they didn't make a lot of sense. His parents labeled him a failure in the service and a poor husband. This narrative has not changed in over 30 years and he has been impacted in many ways: * he has never accessed VA healthcare for fear of retaliation or even running into the perpetrators * he has little trust in structured religion because the chaplain mainly just facilitated his discharge * he has trust issues in relationships, assuming infidelity is a norm * he has carried guilt for his part in what he's beginning to accept was not his doing * he has questioned many things that have gone wrong, wondering if it was retaliation i. There was never any military police (MP) involvement due to his fear of retaliation, which he can only wonder if it did occur on two other occasions in addition to the SSG pointing a revolver at him. He describes the incidents as he remembers them. j. He had a car blow up on the back road of North Fort Lewis. The car broke down on the way off post while he was going home. As he was mechanically inclined, he headed for the gas station, just off post, to get a tow. By they time they got back, the car was a smoldering heap. He never reported it out of fear of retaliation from whoever may have done that. To his knowledge, the tow truck driver never reported it, and since this was on post it was an MP matter so he did not tow the car. The car was not registered to the applicant, so it's not surprising he was not contacted, but he's always wondered if someone retaliated. There was an MP report of the car being towed during that time frame. k. He had been working closely with church functions while in the Army, and his faith had been destroyed, not only by the chaplain that helped sweep this under the rug, but also by the actions of his fellow man and by breakup of his family relationships. He was disillusioned and was questioning everything. He had been trained to believe the system and it had just been destroyed. This included his marriage, by people who were supposed to be his comrades, superiors, even a chaplain helped to destroy his faith, trust, and future. l. This is how his young adulthood was affect. He had trauma as a child, but the military was his choice. He thought things would be different. He would put in his 20 years, be able to retire at an early age, and enjoy the rest of his life. This did not and has not happened. There has been little enjoyment and no trust or love from family, as his ex-wife made them believe it was entirely his fault. He has not had a relationship with his family in over 30 years. There has been even less enjoyment for his current wife. Because of the mental issues he put her through, even the beginning of 2000 was a very depressing time, as it was right after he would have retired from the Army. His wife still cries at times remembering this, thinking he didn't want to spend it with her, on this one of a kind New Year adventure, a new millennium. At this point he should state, his wife and have been together since 1986. This gives the Board an idea of how well his wife understands and loves the applicant. They also went junior high and high school together as close friends. They are fortunate to have each other. His wife has been an anchor in his life and helped him with his mental health, and she has kept him safe. Even though he felt like there might be more wrong with him, his wife just felt he had depression issues. As it turned out, it was much, much more. If it has not been for the love she showed him, he would be alone or worse, dead, may even acted on one of his manic thoughts. He believes when he left the military he was manic. He was seeing red and out for blood over everything that had occurred. All he really wanted, at that point, was his daughter back and safe with him. m. He has to admit, at this point, he believes his ex-wife was also a victim in all of this. Maybe she was more easily persuaded, maybe even a little intimidated by these men, but he should not have had to worry if she was safe while he was at work. n. Since his removal from service, his life has never been stable. He's jumped sporadically from job to job and relationship to relationship. One woman even tried to trap him into marriage, she did not take the birth control he paid for and had a child against his wishes. Now he has a 36-year-old son he rarely sees or talks to. This woman also conspired with his ex-wife to get double child support from two states. This went on for a couple of years before it was caught. This drove him further into depression, anger, and mistrust in people and the systems. o. He still has not gone back to church. He associates structured faith groups with being railroaded out of the service with no compassion or thought for his well being. He was taken advantage of and the people that did this got away with it, and that was in part a result of inaction of the chaplain. Had he not had the experience he had with the chaplain, he would likely have benefited from the networking and emotional support other find in faith groups. p. The job market took him to the place he re-met his current wife. He was a heavy drinker by this point, and worked at the local liquor store when his wife found him. It took a long time for trust to be gained, but them having history from high school helped. Eight months after they met, they were married privately in June 1987. They had no friends to attend and they did not want to bother their families. He had only a speaking relationship with his mother by this point, so unfortunately she was angry about it. They have had no further contact since November 1988, when she was allied and involved in the removal of his daughter to another state behind his back. To this day, his mother refuses to own up to her part in the alienation of love and affection he has received from his daughter. q. Once he and his wife had been married for a number of years, he was able to finally find two different mill jobs that were longer lasting, thanks to his wife's support. Once the stock market crashed in 2008, that all changed. He lost his good job and started down the spiral of bi-polar depression and then a full manic attack in 2011. He has been medicated for these ailments since. It seems the only thing they don't have a pill for is his post-traumatic stress disorder (PTSD) for everything he suffers everyday. The memories, the regrets, what ifs, it is all part of his life everyday and during the night. He has zero family because of what happened to him and the lies that were spoken because of the actions of his superiors from the chaplain to the commanders to the enlisted service members involved. His ex-wife lied to his family. He has been destroyed from the inside out. He still has no relationship with his daughter or his three grandkids thanks to all of this, although he has tried on multiple occasions. r. In April 1988, he had an on the job injury that took approximately 5 years out of his life fighting a system he was not prepared for, the medical community at large. He was originally called a malinger by an emergency room doctor instead of him doing his job. He went to a psychotherapist, and instead of them looking at his problem, he was put on a high dose of Amitriptyline for mental stability. He first tried to commit suicide in July 1989. It wasn't until one and a half years later that they found a huge herniated disk in his neck. He went through two surgeries because his first doctor did a poor job. He was then fighting with the insurance company and doctors. He hated the community as a whole. He didn't trust doctors or insurance companies even the VA has never seen him because it was too close to the Army, where all of his trouble began s. The Army trained him to be a Soldier and also distressed him sexually. He still has feeling of inadequacy, from the inappropriate behavior, to the fear and mistrust that he still deals with every day. If he would have been all in for this type of behavior, his military career would have continued undisturbed, but he was not raised in that manner. All of this activity broke his spirit and his faith. He was in fear for his life due to the threats and intimidations. This has been the story of his life and the reality. He survives for his wife and he lives only for the day the truth will be told, but at 57 years old and with his daughter still not speaking to him, he does not see it ever happening. 4. The applicant provides a document from the VA, dated 23 December 2020, entitled Rating Decision, which shows their records reflect the applicant served in the Army from 5 October 1979 to 22 March 1982. He received an evaluation of 70 percent for PTSD effective 15 August 2019. The previous denials for bipolar disorder and other specified trauma and stressor and related disorder were confirmed and continued. 5. On 25 September 1979, the applicant, at the age of 17 years, enlisted in the US Army Reserve (USAR) delayed entry program (DEP) for a period of 6 years. There is no evidence of a signed parental waiver for him enlisting in the service prior to the age of 18 years old. On 5 October 1979, he was discharged from the USAR DEP and entered active duty for a period of 3 years. His DA Form 2-1 (Personnel Qualification Record) shows he attended one station unit training for the military occupational specialty of 05C (Radio Operator) on 11 October 1979. He arrived at his first duty station in Washington on 28 April 1980. 6. On 12 February 1980, the applicant received a letter of commendation while he was assigned to the Office of the Catholic Chaplain while awaiting advanced training. He performed his duties in an exceptionally meritorious and highly motivated manner. On 22 February 1980, he received a letter of commendation for a job well done, while performing various duties for the Chaplain, while awaiting advanced individual training. 7. On 8 May 1980, a commander's letter of counseling was completed and states the memorandum was an official confirmation of the counseling and advice the applicant's SSG gave the applicant on 8 May 1980 during which the SSG discussed the applicant's mission formation, AWOL during morning hours, and failure to report his whereabouts until 0830. The applicant acknowledged receipt of the counseling. 8. On 11 February 1981, the applicant received a General Counseling Form, which stated the applicant knowingly left his identification card in the side of his helmet after an inspection. He left for an appointment not knowing he did not have his identification with him. He assured the counselor it would not happen again. The applicant concurred with the counseling and signed the form. 9. The applicant accepted nonjudicial punishment (NJP) on: a. 10 June 1981, for failing to go to his appointed place of duty. His punishment included reduction to private/E-2 (PV2), forfeiture of $125 suspended, and extra duty for 14 days. b. 17 February 1982, for being AWOL from on or about 2 November 1981 until on or about 8 January 1982. His punishment included reduction to the grade of private E1/PVT, forfeiture of $128, extra duty for 45 days, and restriction for 60 days. 10. On 29 June 1981, the applicant received a general counseling form, which states he had received a counseling on 22 June 1981 for missing mandatory roll call formation. On 29 June 1981, he missed mandatory roll call formation again. The applicant did not indicate whether he concurred; however, he signed the form. 11. On 18 September 1981, a Personnel Action was completed to remove the applicant's promotion status to Private First Class (PFC). 12. On 2 November 1981, the applicant's duty status was changed from present for duty (PDY) to AWOL. On 2 December 1981, his duty status was changed from AWOL to dropped from rolls (DFR). 13. On 13 January 1982, the applicant received a General Counseling Form, which states he was AWOL from 2 November 1981 to 8 January 1982. Because he was absent for more than 30 days, he was a one-time deserter from the Army, which was very serious. The applicant did not indicate whether he concurred with the counseling but states he fully understood if he continued to behave or perform duty in a manner unacceptable to the Army, action could be initiated to separate him under less than honorable conditions. 14. On 9 March 1982, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of paragraph 5-31, Army Regulation 635-200 (Enlisted Separation), under the EDP. The reason for the proposed action was the applicant evidenced unacceptable duty performance, poor attitude, and he grossly violated Army Regulations. His absence of interest toward improvement, even after counseling, punitive actions under the Uniform Code of Military Justice (UCMJ) and extra attention by his chain of command was most unsatisfactory and in contravention with the best interest of the US Army. The applicant's commander was recommending the applicant receive an under honorable conditions (general). 15. On 10 March 1982, after consulting with counsel, the applicant voluntarily consented to the separation, waiving the opportunity to submit a statement in his behalf. He acknowledged that he understood that if he was furnished an under other than honorable conditions discharge he could expect to encounter substantial prejudice in civilian life. 16. On 12 March 1982, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 5-31, and directed that he be, issued an under honorable conditions (general) discharge certificate. 17. On 22 March 1982, the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had completed 2 years, 3 months, and 11 days of creditable active military service. He had lost time from 2 November 1981 to 7 January 1982. 18. On 5 October 2021, the Army Board for Correction of Military Record received a memorandum from the Army Criminal Investigation Division, which states a search of the Army criminal file indexes revealed no records pertaining to the applicant. 19. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 5, then in effect, set forth the conditions under which enlisted personnel could be discharged, released from active duty or active duty for training, or released from military control, for the convenience of the Government. Paragraph 5-31, in effect at the time, provided the policies and procedures for separating enlisted personnel under the Army's EDP. The EDP gave commanders the opportunity to separate unproductive Soldiers who had completed at least 6 months but less than 36 months of active duty and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army. The program required Soldiers to voluntarily accept discharge and they could receive either an honorable or general discharge. 20. 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. 20. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. A review of the VA's Joint Legacy Viewer indicates the applicant received a service connected disability rating of 70% for PTSD effective 15 August 2019. There is documentation to support a behavioral health diagnosis at the time of his discharge. PTSD is not a mitigating factor the misconduct that led to his discharge. BOARD DISCUSSION: 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 statement, his record of service, the frequency and nature of his misconduct and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA Medical Advisor. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by PTSD. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. The Department of the Army began testing the EDP in October 1973. In a message, dated 8 November 1974, the Deputy Chief of Staff for Personnel announced the expansion of the EDP. The program provided for the separation of Soldiers whose acceptability, performance of duty, and/or potential for continued effective service fell below the standards required for retention in the Army. Soldiers could be separated under this program when subjective evaluation of their commanders identified them as lacking qualities for continued military service because of attitude, motivation, self- discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. An honorable or general discharge was required. 4. Army Regulation 635-200 (Personnel Separation – Enlisted Personnel) in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 5 provided for the EDP. The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential could be discharged under the EDP. It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary. A general discharge was a separation from the Army under honorable conditions if an individual's military record was not sufficiently meritorious to warrant an honorable discharge. 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. 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) AR20210012417 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1