SAMR-RBA     24 June 2022 





MEMORANDUM FOR Case Management Division, Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT:  Army Board for Correction of Military Records Record of Proceedings For ., AR20210014130 


1.Reference the attached Army Board for Correction of Military Records Record ofProceedings in which the Board recommended denial of the applicant’s request.

2.I have reviewed the evidence presented, findings, conclusions, and Board memberrecommendations. I find there is sufficient evidence to grant relief.  Therefore, under theauthority of Title 10, United States Code, section 1552, I direct that the Department ofthe Army records of the individual concerned be corrected by amending his DD Form214 for the period ending 800328 as follows:  Item 4a. (Grade, Rate or Rank) – “PFC”;item 4b. (Pay Grade) – “E3”; Item 24 (Character of Service) – “Honorable”.  No furtherrelief is directed.

3.Request that the correction indicated above be completed not later than 23 October2022.  Further request that the individual concerned and counsel, if any, as well as anyMembers of Congress who have shown interest be advised of this decision and that theArmy Board for Correction of Military Records be furnished a copy of thecorrespondence.


BY ORDER OF THE SECRETARY OF THE ARMY: 

P19TB1inTB





Encl



CF: 
(1)OMPF






ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:  BOARD DATE:  2 March 2022 DOCKET NUMBER:  AR20210014130 


APPLICANT REQUESTS:  The applicant requests the upgrade of his under other than honorable conditions discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

•DD Form 293 (Application for the Review of Discharge) in lieu of DD Form149 (Application for Correction of Military Record)

•Seven letters of support

•Applicant's school records

•Department of Veterans Affairs (VA) Form 21-22 (Appointment of VeteransService Organization as Claimant's Representative)

•Documents pertaining to applicant's pending organ transplants

•Privacy Act Release Form



FACTS: 

1.The applicant did not file within the 3-year time frame provided in Title 10 (ArmedForces), United States Code (USC), section 1552 (b) (Correction of Military Records:Claims Incident Thereto). However, the Army Board for Correction of Military Records(ABCMR) conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states, in effect, he recognizes he was wrong when he went absentwithout leave (AWOL), and he apologizes for having done so; he attributes hismisbehavior to his youth, and he acknowledges he did not fully appreciate therepercussions of his actions, but he argues he was under mental stress at the time. Heprovides additional information and arguments in a self-authored statement.

a.The applicant entered the Army to escape his living conditions. He came from afamily with six boys and one girl, and they had only three bedrooms; his family was "poor, poor," and the Army offered a way out. By the time he graduated from high school, he was essentially illiterate; he had a 74 IQ and only a limited ability to read and write. 
b.The applicant experienced a number of traumatic events while on active duty, thefirst of which occurred at Fort Dix, NJ, during "boot camp" (basic combat training (BCT)); a female drill sergeant pressured him for sex, telling the applicant, if he refused, she would make him "stay and do extra duty." The applicant declined because he was a virgin, so the drill sergeant forced him to perform the extra duty. Afterwards, both the drill sergeant and other Soldiers harassed him for refusing to have sex, and the applicant discloses the Soldiers' harassment resulted in some fights.  

c.At one point, during BCT weapons qualification, the applicant experienced "shellshock," and he found himself feeling anxious each time he fired his rifle. The applicant stated, "Every shot I took I tried to get it done so I would be done shooting," but he acknowledges he did not do well with that. From the weapons range, the unit went to qualify on hand grenades, and the applicant had issues there as well. The drill sergeants would say, "Your Mom doesn't want you...you're a pansy...you're a virgin...there isn't anywhere for you to go...suck it up." One of the Soldiers failed to throw the grenade, and everyone had to take cover; as with the aforementioned sexual harassment, this event also emotionally affected the applicant. Fortunately, the applicant ended up doing well in physical training, and he graduated BCT and moved on to another Fort Dix unit for advanced individual training (AIT). 

d.From Fort Dix, the applicant went to Fort Campbell, KY, where orders assignedhim to the 101st Screaming Eagles (101st Airborne Division (Air Assault)). In January 1978, his unit "reforged" to Camp Drum, NY, and exposure to the cold weather resulted in the applicant incurring frostbite on his feet; the applicant comments that his feet still give him problems today. At the end of 1978, the applicant's unit went to an Air Force Base in Florida, where the applicant fell off the back of a deuce and a half (M-35,  
2 1/2-ton cargo truck); in the fall, the applicant hurt his back, and, like the frostbite injury, his back continues to plague him.  

e.The applicant got married in 1978, and, in 1979, he received orders for Germany;his wife remained home while he went overseas. Subsequent orders further assigned the applicant to the 3rd Armored Division, where he served as a mechanic for 5-Ton and deuce and a half vehicle. When he reached his new unit, the applicant held the rank/grade of specialist four (SP4)/E-4; he asserts the Army would not promote him to any higher grade because of his illiteracy.  

f.The applicant recalls an incident, which occurred during a field training exercisethere in Germany. The applicant was watching a Soldier perform a parachute jump; the chute did not fully open and it entangled the Soldier. When the Soldier could not free himself, he fell to the ground and died not far from where the applicant was standing; the Soldier's manner of death "freaked out" the applicant so much, he failed to attend his unit's formation the next morning. In response to the applicant's failure to report, the unit locked him up for 3 days; when they finally released him, they sent the applicant to 
see the colonel for an Article 15 (nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ)). As punishment, the applicant had to do "Unit Police gate" and extra duty. Throughout, no one ever mentioned the Soldier's death and never suggested the applicant speak with someone about what he had witnessed.  

g.As he performed his extra duty punishment, his wife, who was living inPennsylvania, got into a terrible auto accident. He asked for permission to return home, but his chain of command refused. After that, the applicant did all he could to stay sane, but when he could no longer handle the stress, he went AWOL; he signed his own leave form and boarded a military hop to Dover Air Force Base, DE. The applicant declares he needed to be with his family and, besides, they were talking about sending his unit to Iraq, and the applicant was in no mental state at that point to remain in the Army.  

h.In March 1980, the applicant turned himself in to military authority at Fort Dix; hewas "tired of running and not being free." They locked him up for a month and charged him with desertion. One day, they came to him with some papers, saying if he signed, he could go home; the applicant could not read and did not fully understand the consequences of signing. In addition, all they told him about the effects of his signature were that he could never seek any military benefits and would be ineligible for government employment.  

i.The applicant acknowledges what he did was wrong, but he contends he maynever have gone AWOL if the Army had handled his mental health better. In the Army, they told you to "suck it up and move and just be a man and get over it." The applicant wanted to be a part of the military, and he wanted to serve his country and offer his family a better life, but he feels the Army never gave him that opportunity. The applicant additionally affirms he was never the same after seeing the Soldier die in front of him; that incident continues to haunt him. He seeks this upgrade so he can finally obtain the help he needs from the VA; asking for help is not easy for him, but he hopes to gain access to treatments he should have received decades ago. He currently has an LVAD so that his heart can pump, and he is awaiting a heart transplant; the applicant maintains the stress of his service, and all that took place while on active duty, contributed to his present condition.  

3.The applicant provides the following:

a.The applicant submits documents showing he is on waiting lists for a kidney and aheart transplant. In an undated letter, a transplant social worker states the applicant has a significant medical history of "nonischemic cardiomyopathy," and, recently, the applicant's health and mobility have declined; doctors have had the applicant admitted to a hospital to undergo an expedited heart transplant workup. The transplant social worker additionally notes the applicant's psychiatric history reflects "polytrauma and 
PTSD (post-traumatic stress disorder), adjustment disorder, also with seasonal depressive symptoms, likely related to polytrauma."  

b.The applicant includes a copy of his Junior and Senior High School transcripts,which show that, although the applicant did relatively well in Junior High School, his Senior High School grades were poor, with an academic average of "1.7899."  

c.The applicant offers the Board seven letters of support, prepared by members ofhis community and county probation, parole, and pre-trial services. The letters indicate that, following his discharge, the applicant became a pastor and established a church. As a pastor, the applicant has worked with the local criminal justice system by voluntarily helping individuals on probation or parole and offering them faith-based mentorship. In addition, the applicant collaborates with local businesses and service organizations to provide annual Christmas dinners (which includes dinner and gifts for the children), back-to-school backpack drives, trips to the beach and baseball games, and summer-time barbecues. All laud the applicant as someone who has made a substantial and positive difference in his community and for his congregation. 

4.The applicant's service records show:

a.On 12 July 1977, the applicant enlisted into the Regular Army for 4 years; he was18 years old. Upon completion of initial entry training and the award of military occupational specialty 63B (Wheeled Vehicle Mechanic), orders assigned the applicant to a transportation company on Fort Campbell, and he arrived at his unit, on 14 November 1977. 

b.Effective 1 February 1979, the applicant's chain of command promoted him toSP4. On 8 February 1979, permanent orders awarded the applicant the Driver and Mechanic Badge with Mechanic Component Bar, based on the applicant's attainment of a high degree of skill in the maintenance of motor vehicles, during the period 14 November 1977 through 29 January 1979. A DA Form 2166-5 (Enlisted Evaluation Report), for the rating period November 1977 through February 1979, showed the applicant's rater and indorser gave the applicant a rating of 124 points out of a possible 125.The rater stated the applicant's mechanical abilities were superior to his peers, andhis appearance and conduct were above reproach; the indorser indicated the applicanthad displayed a high degree of dedication by working long hours, and his dependabilityhad earned him the trust of his superiors.

c.Orders subsequently transferred the applicant to Germany and assigned him to amaintenance battalion within the 3rd Armored Division; the applicant arrived at his unit, on 21 May 1979. On 25 September 1979, the applicant accepted NJP for failing to report, on 15 September 1979, for Unit Police Duty. The imposing official (the applicant's company commander) directed the applicant reduction to private first class 
(PFC)/E-3, the forfeiture of $108 per month for 1 month, and 7 days' extra duty. The applicant filed an appeal and, on 12 October 1979, the applicant's battalion commander granted, in part, the applicant's appeal by suspending the grade reduction and forfeiture for 60 days.  

d.On 23 October 1979, the applicant's unit reported him as AWOL. On 5 November1979, the applicant's company commander vacated the applicant's suspended NJP punishments. On 22 November 1979, the applicant's unit dropped him from its rolls. 

e.On 23 November 1979, the applicant surrendered himself to military authority atFort Dix; effective that same date, orders assigned him to the U.S. Army Personnel Control Facility located on Fort Dix.   

f.The applicant's separation packet is unavailable for review; however, his servicerecord includes his rank reduction and separation orders, as well as his 
DD Form 214 (Certificate of Release or Discharge from Active Duty).  

(1)The rank reduction orders directed the applicant's demotion from SP4 toprivate (PV1)/E-1, effective 11 February 1980; the authority was Army Regulation (AR) 600-200 (Enlisted Personnel Management System), paragraph 7-64c (Reason for Reduction – Approved for Discharge from Service under Other than Honorable Conditions).  

(2)The applicant's DD Form 214 shows that, on 28 March 1980, the applicantwas discharged under other than honorable conditions, per chapter 10 (Discharge for the Good of the Service), AR 635-200 (Personnel Separations – Enlisted Personnel). The applicant completed 2 years, 7 months and 17 days of his 4-year enlistment contract, with lost time from 19791023-19791122 (31 days). Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) lists a "MECHANIC BADGE." The remarks section (item 18) states the applicant served 114 days of excess leave, from 19791205 through 19800328.  

5.The applicant requests the upgrade of his under other than honorable conditionsdischarge. He acknowledges he was wrong to go AWOL, but asserts the Army shouldhave offered him behavioral health treatment, following his exposure to traumaticevents; had the Army done so, he may not have committed the misconduct that led tohis adverse discharge. Medical authority has placed him in a hospital as he awaits bothheart and kidney transplants; an upgrade will allow him access to VA healthcare andother benefits.

a.The absence of the applicant's separation packet means we are unable todetermine the full circumstances of the applicant's discharge; however, his service record contains his DD Form 214 and, based on the information provided on the 
DD Form 214, the Board presumes the applicant's leadership completed his separation properly. This presumption notwithstanding, the version of the military personnel records regulation in effect at the time, AR 640-10 (Individual Military Personnel Records), required all case files associated with a Soldier's separation to be permanently placed in the affected Soldier's official military personnel file (OMPF).   

b.The applicant's available service record and his DD Form 214 indicates he wasAWOL for 31 days. During the applicant's era of service, Soldiers charged with UCMJ violations, for which a punitive discharge was an authorized maximum punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and available in-lieu of trial by court-martial. The Manual for Courts-Martial, in effect at the time, showed a punitive discharge was one of the available maximum punishments for violations of Article 86 (AWOL for more than 30 days). 

c.The ABCMR is not authorized to grant requests for upgraded characters ofservice solely to make someone eligible for Veterans' benefits; however, in reaching its determination, the Board can consider the applicant’s petition, his evidence and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 

6.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 he developed 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 theArmy Reserve (Delayed Entry Program) on 08 Feb 1977 and subsequently transferred to the Regular Army on 12 Jul 1977. While on active duty, he was assigned overseas to Germany from 18 May 1979 - 06 Jul 1981, but his tour was not completed due to his AWOL episode. His singular award was the Mechanic Badge. He received an Article 15, dated 15 Sep 1979, for failing to go to “Fliegerhorst Kaserne Unit Police Duty.” He was later charged with being absent without leave (AWOL) from 23 Oct 1979 - 23 Nov 2979. He received an Under Other Than Honorable Conditions discharge on 28 Mar 1980 with DD-214 Narrative Reason for Separation, Administrative Discharge Conduct Triable byCourt Martial.
c.The supporting documentation included his letter which noted, “my drill sergeanttold me that if I didn’t agree to have sex with her I would have to stay and do extra duty. I was a virgin at the time and said no. I was made to stay and do extra duty. I got harassed by the drill instructor and other soldiers because the drill instructor told them I said no.”  There were also several support letters from friends in his community, making note of his solid character and service to the community as a church pastor in the years following his discharge.    d.The VA electronic medical record, Joint Legacy Viewer (JLV) did not indicate anyservice connected disability(s). A Psychology Outpatient note, dated 03 Feb 2020 indicated, “Mr. Lewis reported having nightmares about his in-laws being killed and trying to get back into the service. He reported the nightmares about the in-laws is different from the event, because in the dream he is watching them die. He reported that when he dreams about going back into the Army the theme is about…just wanting to be a mechanic…He reported that he knew the Army was not a good fit for him when he went to boot camp, because he found being around gunfire distressing. He reported that when he witnessed the parachuting accident…I ran…and had no intention of returning, because he did not think he could handle any more stress…the day after the parachuting accident, he failed to report to formation, then went AWOL.” The psychologist diagnosed him with Posttraumatic Stress Disorder, Chronic and Adjustment Disorder with Depressed Mood. The Problem List indicated Posttraumatic Stress Disorder, Chronic (29 Jan 2020) as the only identified behavioral health condition or issue.   
e.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, PTSD/MST. As there is an association between PTSD/MST and avoidant behavior, there is a nexus between applicant’s condition and his period of going AWOL, as well as not showing for a duty requirement in his unit. Chronological review of his military career indicates a dramatic change in the applicant’s motivation, temperament and level of instability occurred during his time in service. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers who develop PTSD/MST in a noncombat military environment. The sexual harassment he experienced during basic training more likely than not further accentuated his PTSD symptoms and psychological distress as a whole while on active duty.  f.Kurta Questions,
(1)The applicant did have a condition that may excuse or mitigate the discharge (i.e.PTSD/MST).
(2)The condition did exist and the traumatic events occurred during military service.
(3)Finally, the PTSD condition and experiences of sexual harassment/intimidationactually does excuse or mitigate the discharge – PTSD/MST symptoms mitigatesfor a period of being AWOL and failing to show for a duty obligation. AnHD/Secretarial level upgrade is recommended.


BOARD DISCUSSION: 

After reviewing the application and all supporting documents, the Board found that relief was not warranted.  The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service.  Upon review of the applicant’s petition, available military records and medical review, the Board notwithstanding the medical findings for recommendation for an upgrade of the applicant’s discharge. The review stated the applicant has a mitigating Behavioral Health condition, PTSD/MST. As there is an association between PTSD/MST and avoidant behavior, there is a nexus between applicant’s condition and his period of going AWOL, as well as not showing for a duty requirement in his unit. The Board determined the applicant did well until his assignment to Germany.  Although the applicant provided character letters as support for clemency consideration, the Board found insufficient evidence to mitigate the misconduct.  Based on that, the Board denied relief.   


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

XXX XXX 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. 


Microsoft Office Signature Line...


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. 

ADMINISTRATIVE NOTE(S): 

Not Applicable 


REFERENCES: 

1.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords must be filed within 3 years after discovery of the alleged error or injustice. Thisprovision of law also allows the ABCMR to excuse an applicant's failure to timely filewithin the 3-year statute of limitations if the ABCMR determines it would be in theinterest of justice to do so.
2. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. 
 
 a.  Paragraph 1-13a (Honorable Discharge).  An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. Commanders were to give due consideration to the Soldier's age, length of service, and general aptitude. Where there were infractions of discipline, commanders were to assess the extent of those infractions as well as the seriousness of the offenses. 
 
 b.  Paragraph 1-13b (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. 
 c. Chapter 10 applied to Soldiers who had committed an offense or offenses for which the punishment under the UCMJ included a punitive (i.e. bad conduct or dishonorable) discharge. Soldiers could voluntarily request discharge once charges had been preferred; commanders were responsible for ensuring such requests were personal decisions, made without coercion, and following being granted access to counsel. The Soldier's command was to give the Soldier a reasonable amount of time to consult with counsel prior to making his/her decision. The Soldier was required to make his/her request in writing, which certified he/she had been counseled, understood his/her rights, could receive an under other than honorable conditions character of service, and recognized the adverse nature of such a character of service. Consulting counsel was to sign the request as a witness. 
 
3. The Manual for Courts-Martial, United States, in effect at the time showed Article 86 (AWOL for more than 30 days) included a punitive discharge.  
 
4. AR 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. Paragraph 7-64c (Approved for Discharge from Service under Other Than Honorable Conditions) stated commanders could reduce Soldiers discharged under other than honorable conditions to the lowest enlisted grade. 
 
5. 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 Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (BCM/NRs) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including Post Traumatic Stress Disorder (PTSD); Traumatic Brain Injury (TBI); sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to 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 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. 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. 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. 
 
7. AR 15-185 (ABCMR), paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity, which means the Board presumes what the Army did was correct. 
 
8. AR 640-10 (Individual Military Personnel Records), in effect at the time, stated case files for approved separations will be placed in the Soldier's OMPF. 
 
 
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