IN THE CASE OF: BOARD DATE: 30 January 2023 DOCKET NUMBER: AR20220006650 APPLICANT REQUESTS: . upgrade of his under conditions other than honorable discharge to honorable . personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record) . DD Form 214 (Report of Separation from Active Duty) . Certificate of Achievement . DA Form 2-1 (Personnel Qualification Record) . two DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ) . DD Form 458 (Charge Sheet) . discharge proceedings FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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, in effect: a. Around the end of February 1977, he had entered post in a military vehicle on his way to the motor pool when he came to a four-way stop and started to turn. Half way into the four-way stop, a car approached from his left and pulled right up to the corner preventing him from completing the turn and he had to stop in the middle of the intersection. The car was driven by a male in civilian clothes who would not back up and was blowing the horn and yelling at him to back up. He could not back up because of the traffic behind him so he started to move forward forcing the other to driver back up. b. He turned into the motor pool and he had not even parked when he was told he had to report to headquarters immediately. When he arrived, the driver of the other car was there. He got called to the captain's office and was asked about what happened and he told his side. He was then told the other driver was a captain from the Navy and that he could be court-martialed and could lose his military driver's license. The Navy captain stated that he did not want him to get in trouble and he was lectured on driving and was told to apologize and was dismissed. c. The Navy captain followed him and asked him if he wanted to get a drink but he declined. A day or two later, he was at a bar just outside post when the Navy captain came in and started talking and bought him a drink. He thanked him and got up to leave when he followed him outside. He started to walk towards the post when the Navy captain asked him if he wanted a ride so they got in his car. The Navy captain pulled into the parking lot of an adult book store and started to rub his privates. He then undid his pants and started a sex act on him. When it was over, the Navy captain drove him to post. It happened again but this time he told him that he owed him for not getting him in trouble. It was that weekend that he left and went home and was afraid to come back. He stayed for a week. Around the middle of June, on a weekend night, the Navy captain showed up again at the bar and the same thing happened. He then went home again for a week. d. The following week, the Navy captain sexually assaulted him again. Towards the end of August, the Navy captain made him leave the bar with him and took him to a friends' place. He tried to undress him but he refused and the captain got mad and threatened to call his commander. Towards the end of October, the Navy captain showed up at his barracks room. When he answered the door, he pushed his way in, pulled his pants down, and had sex with him. The following weekend he went home and stayed a month and half, went back, everything was off, he did not feel safe. He got in trouble and left again the following week for a couple months. When he returned, he was going to talk to his commander about it all, but was told he was going to be sent to Fort Dix, where they discharged him. e. He joined the Army in 1976 at the age of 20; he is now 65. He joined because he wanted to serve his country. His father and uncles were in the Army during World War II and his older brother was in the Air Force during Vietnam. He had high scores during basic training and his military occupational specialty was 64C (Motor Transport Operator). He had just received his learner's permit for track vehicles and was at reenlisting stage when this all happened. During the course of the harassment, he missed time, was scared to be around post, and he was not safe even in his barracks room. f. He did not do the track training and was ashamed and concerned that someone would know what was happening to him. He had asked to be reassigned to a different base or overseas. He did not reenlist and could not stay in contact with the people he served because of guilt. To this day, he worries about someone knowing, especially his two sons. He does not talk with family or friends about his service. He had to stay away from his parents' house and his hometown for a year after his discharge so he did not have to explain to anyone. The only person he told was his mother; he never could tell his father. His father passed away not knowing and he is ashamed of himself for it. g. After he was discharged, he started drinking a lot, got in trouble, and did some state time. He has a hard time trusting people and he does not feel comfortable around people to this day. When he attends friends' funerals that are military, he is ashamed and feels guilty. All he wants is to get his discharge changed to honorable and to be able to have a military funeral. 3. The applicant enlisted in the Regular Army on 1 September 1976. 4. The applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on: . 1 April 1977, for being absent without leave (AWOL) during the period 18-28 March 1977 . 5 July 1977, for being AWOL during the period 27-30 June 1977 . 7 July 1977, for being AWOL during the period 1-5 July 1977 . 6 September 1977, for failing to go at the time prescribed to his appointed place of duty on two occasions and for being AWOL during the period 26-30 August 1977 5. On 25 October 1977, the applicant departed AWOL and remained AWOL until surrendering to military authorities on 16 December 1977. 6. On 19 December 1977, court-martial charges were preferred against the applicant based on his AWOL offense. 7. On 21 December 1977, after consulting with legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial, due to the charges preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge. 8. In his request, he acknowledged he was guilty of the charges against him which authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged that: . he had not been subjected to any coercion whatsoever by any person with respect to his request for discharge . he was advised of the facts which must be established by competent evidence beyond reasonable doubt to sustain a finding of guilty . he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the Veterans Administration (VA) . he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws . he could expect to encounter substantial prejudice in civilian life by reason of discharge under other than honorable conditions 9. On 6 January 1978, the separation authority approved the applicant's request for discharge and directed the issuance of an under other than honorable conditions characterization of service. 10. The applicant's DD Form 214 shows he was discharged on 24 January 1978 under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions character of service. 11. The Army Discharge Review Board denied the applicant's request for an upgrade of his discharge on 16 July 1982. 12. The applicant provided a Certificate of Achievement which he received for obtaining a score of 491 on the Physical Combat Proficiency Test on 8 October 1976. 13. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his UOTHC discharge to honorable and personal appearance before the Board. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: (1) The applicant outlines a series of events allegedly involving a Navy Captain that began with them meeting through a traffic incident in February1977 and eventually, per applicant’s assertion, involved sexual assault by the Captain. In essence, applicant asserts the inappropriate sexual behavior occurred on multiple occasions. He reports occasions of AWOL following each alleged incident, which eventually led to his discharge. He describes that following his discharge he started drinking excessively, got into trouble, and was incarcerated. He has difficulty trusting others, does not feel comfortable around others, and feels guilt and shame when attending military funerals. (2) Applicant enlisted into the RA on 1 September 1976. (3) He received NJP on multiple occasions to include 1 April 1977 for AWOL 18-28 March 1977; 5 July 1977, for AWOL 27-30 June 1977; 7 July 1977, for AWOL 1­5 July 1977; and 6 September 1977 for failing to go at the time prescribed to his appointed place of duty on two occasions and for being AWOL 26-30 August 1977. (4) On 25 October 1977, the applicant departed AWOL until he surrendered to civilian authorities on 16 December 1977. (5) On 19 December 1977, court-martial charges were preferred against applicant based on AWOL offense. (6) His DD214 shows he was discharged 24 January per AR 635-200, chapter 10 with UOTHC discharge. (7) The ADRB denied request for upgrade on 16 July 1982. c. Supporting Documents All supporting documents found in file were reviewed. Personal statement regarding the alleged incidents and impact have been summarized in the ROP. There is no separation physical or mental status evaluation available for review. DD Form 293 signed by applicant on 17 April 1980, from prior ADRB review, references medical concerns (bad back) associated with discharge noting “discharged (sic) was turned down, so I tried other ways to get discharged, which resulted in me going AWOL.” There was no reference to a history of MST, although much of the overall proceedings was of poor legibility. d. AHLTA The Army electronic medical record, AHLTA, was not reviewed; it was not an existing EMR at the applicant’s time of service. e. JLV Available VA records were reviewed via JLV. No service-connected conditions are noted in the record. His problem list contains PTSD; Anxiety Disorder, Unspecified; and personal history of adult physical and sexual abuse. The applicant has numerous behavioral health contacts beginning in January 2022; all contacts in his file appear to be either BH or administrative in nature and a 14 February 2022 letter indicated he was ineligible for care due to characterization of discharge requirements. He is coded as eligible for humanitarian services and Chapter 17 eligibility per JLV demographics information. During a Primary Care Mental Health contact on 27 January 2022, he reported his discharge was result of MST and he denied any prior behavioral health treatment. “He is more open to getting treatment now due to facing his mortality/aging and it was suggested by his provider to come to VA to talk to someone about his MST.” A full evaluation dated 1 February 2022 resulted in diagnoses of Unspecified Anxiety Disorder, r/o PTSD, and Military Sexual Trauma. During this evaluation he apparently acknowledged motivation to get his discharge upgraded as one reason for finally going on record regarding his asserted experiences. The clinical note of that date includes details generally consistent with the documentation submitted to the ABCMR regarding the encounter with the Navy Captain in traffic followed by multiple incidents of MST. Documentation describes, in part, “Forced himself on me. That happened a few times. Physical, hands on, threatening. Told me I'd get in trouble if I ever told.” On 23 February 2022, applicant completed a structured clinical interview (CAPS-5) to assess for the presence of symptoms associated with full criteria for PTSD. His criterion A trauma was multiple episodes of alleged MST by a Navy Captain between Spring and Fall 1977; “the last time it happened, he assaulted me in my barracks. That's when I left the longest and the AWOL's are what got me put out.” The evaluating licensed clinical social worker concluded, based on applicant’s responses to the CAPS-5, that he met full criteria for PTSD per the DSM-5. He has had several individual psychotherapy sessions in the interim for PTSD secondary to MST, most recently on 4 January 2023. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant asserts a of MST contributing to the circumstances leading to his discharge. 2. Did the condition exist or experience occur during military service? Yes; the applicant asserts a history of MST and has subsequently been diagnosed with PTSD secondary to MST by a VA mental health professional (not service connected). 3. Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant asserts mitigation due to MST contributory to the behavior (AWOL) leading to discharge. Under liberal consideration guidelines, his assertion alone is worthy of consideration by the Board. Although no formal service connection has been established, he has been diagnosed with PTSD secondary to these alleged events, with a nexus established through a clinical evaluation process based on self-reports of functioning and history and a structured interview directly assessing for PTSD. The agency BH advisor notes that AWOL is an avoidance behavior that is part of the natural history and sequelae of MST -especially if the MST is repeated/ongoing and removing oneself from the high-risk environment reduces the likelihood of future sexual assault --and is therefore mitigated. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered applicant’s contentions, the military record, and regulatory guidance. One possible outcome was to grant relief. However, the majority of the Board members, notwithstanding the medical review found insufficient evidence of in-service mitigating factors to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference to weigh in support of a clemency determination. Based on a preponderance of evidence available for review, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : X : X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined 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, 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 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 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who has committed an offense for which the authorized punishment includes a punitive discharge, may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. Although a general discharge is authorized, an under other than honorable conditions discharge is normally considered appropriate. b. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. Paragraph 3-7b provides that 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. 3. 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. 4. Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. Paragraph 2-11 states 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. 5. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS//