IN THE CASE OF: BOARD DATE: 16 August 2023 DOCKET NUMBER: AR20230000305 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. Additionally, he requests an appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Letter * Veteran Service Officer Letter * VA Rating Letter (two) * Medical Documents * Post-Traumatic Stress Disorder (PTSD) Questionnaire 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 he was sexually assaulted/harassed while in service and he has PTSD. He reported the incident to his leadership. Nothing was done. The accuser then raped him again for being questioned by his leadership. He felt betrayed, helpless, depressed, and feared for his life so he left the military. He saw no other option when he asked for help, and none was given. 3. The applicant enlisted in the Regular Army on 4 January 1977 for three years. His military occupational specialty was 11B (Infantryman). 4. He served in Germany from 24 June 1977 through 15 January 1978. 5. The applicant was reported as absent without leave (AWOL) on 16 January 1978 and dropped from the rolls as a deserter on 16 February 1978. He was confined by civil authorities on 18 May 1978. He was returned to military control on 19 May 1978 and was present for duty on 30 May 1978. 6. The applicant underwent a mental status evaluation on 31 May 1978, he was mentally capable to understand and participate in board proceedings and met retention standards. 7. Court-martial charges were preferred against the applicant, for violations of the Uniform Code of Military Justice (UCMJ). However, his DD Form 458 (Charge Sheet) is not available for review. 8. The applicant consulted with legal counsel on 31 May 1978 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a UOTHC discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), Chapter 10, for the good of the service-in lieu of trial by court-martial. In his request for discharge, he acknowledged his guilt, and he acknowledged his understanding that he may be deprived of many or all Army benefits, that he may be ineligible for many, or all benefits administered by the VA and that he may be deprived of his rights and benefits as veteran under both Federal and State law. b. He elected not to submit a statement in his own behalf. 9. On 1 June 1978, the applicant’s commander formally recommended his elimination from the service. The applicant was personally interviewed and stated his AWOL was caused by his inability to cope with military life. He further stated he could not adjust to Army life. The applicant’s chain of command recommended approval. 10. The separation authority approved the applicant's request for discharge in lieu of trial by court-martial; and directed he be reduced to the lowest enlisted grade with a DD Form 794A (UOTHC Discharge Certificate). 11. The applicant was discharged on 22 June 1978. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions AR 635- 200, Chapter 10, with Separation Program Designator "JFS" [for the good of the service - in lieu of trial by court-martial]. His characterization of service was UOTHC. He completed 1 year, 1 month, and 16 days of net active service. He lost 144 days of service. 12. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 13. In the processing of this case, the U.S. Army Criminal Investigation Division, searched their criminal file indexes, which revealed no Criminal Investigative and/or Military Police Reports pertaining to the applicant. 14. The applicant provides: a. A VA letter, dated 3 February 2020, that show the applicant’s military service for the period of 4 January 1977 through 22 June 1978, was dishonorable for VA purposes. b. A VA Rating Decision letter, dated 19 July 2022, which shows service-connection for treatment purposes only, for PTSD was granted. c. A Veterans Service Officer letter, dated 19 July 2022, states the applicant endured several sexual assaults in service which led him to go AWOL. His period of AWOL was not more than 180 days. By law, the VA is prevented from granting entitlement to benefits if the reason for the veteran's discharge constitutes a "statutory bar to benefits." The applicant’s compelling circumstance was the fact that he was sexually assaulted while in service. The applicant asserts that his mental health disability is due to military sexual trauma. d. A VA Rating Decision letter, dated 26 September 2022, shows his service- connection for PTSD was confirmed and continued. e. Medical documents and a PTSD Questionnaire. 15. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 16. MEDICAL REVIEW: a. Background: The applicant is applying to the ABCMR requesting an upgrade of his UOTHC discharge to Honorable, in addition to an appearance before the Board. b. The specific facts and circumstances of the case can be found elsewhere in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: * Applicant asserts he was sexually assaulted/harassed while in service and now has PTSD. He indicates that he reported the incident to his leadership but nothing was done, and he was subsequently assaulted again. * He enlisted in the RA on 4 January 1977. * He was reported AWOL 16 January 1978 and DFR on 16 February 1978, prior to returning to military control in May 1978. * He completed a mental status evaluation on 31 May 1978 which was unremarkable and indicated he met retention standards. * Court-martial charges were preferred; however, charge sheet is not available for review. * He subsequently voluntarily requested discharge via AR 635-200 Chapter 10. * An interview at the time of service/separation indicated his AWOL was caused by inability to cope with and adjust to military life. * He was discharged 22 June 1978, per DD214 under AR 635-200 Chapter 10, with characterization of service UOTHC. c. Review of Available Records Including Medical: All supporting documents reviewed. Lack of citation or discussion in this section should not be interpreted as lack of consideration. Supporting materials reference MST and PTSD associated with his request. VA rating decision of 19 July 2022 indicated a service connection for PTSD for treatment purposes only, with documentation referencing PTSD secondary to MST. The applicant has provided numerous VA medical records supporting his diagnosis of, and associated treatment for, PTSD. Of note, records describe utilization of cognitive processing therapy, which is considered a gold- standard empirically-based treatment for PTSD. Session dated 28 April 2022 referenced an MST that occurred in Germany around 1978, describing that the apparent offender was an NCO with whom he had developed a trusting relationship. Evaluation of 14 April 2022 indicated issues have been ongoing since 1978 and have gotten worse since death of daughter and cardiac diagnosis in 2021. Per encounter of 8 April 2022, veteran described when he reported the trauma he was reportedly made to feel like he was harming the soldier’s career by speaking out. Initial PTSD Disability Benefits Questionnaire dated 13 July 2022 resulted in diagnosis of PTSD and described various ways in which his reported trauma impacted his functioning, to include multiple divorces in part associated with his mental health issues (per his report). His record references potential pre-enlistment mood concerns and a suicide attempt by GSW during his high school years, in addition to inpatient psychiatric hospitalization and homelessness after his period of service. The evaluation described that he went AWOL after MST; he reportedly had scheduled leave and did not return due to overwhelming negative emotions. The MST event reportedly occurred in 1978; applicant indicated that he told leadership who confronted the perpetrator, who then assaulted him again in retaliation. Available active-duty medical records to include SF600 (Chronological Record of Medical Care) do not appear to contain references to an MST event or any sequelae. CID/MP inquiry returned no relevant records pertaining to applicant. d. The Army electronic medical records, AHLTA and GENESIS, were not reviewed; they were not existing EMR at the applicant’s time of service. e. Available VA records were reviewed via JLV, and the applicant has provided ample records to the Board and reviewed above. He does not have any service- connected disabilities, but the VA documentation referenced above supports the presence of service-related PTSD due to reported MST eligible for treatment purposes only. His overall VA medical record will not be exhaustively summarized as the agency advisor determined a diagnosis of PTSD secondary to claimed MST has been established above. His VA treatment history dates back to April 2022, and he appears to have been consistently in care in the interim to include both medication management and psychotherapy. Documentation consistently references PTSD due to MST with associated depressive symptoms, to include exacerbation over the last 2 years following daughter’s death. His most recent contact at the time of this review was on 10 August 2023 for individual psychotherapy; at this time, he reported improvement in symptoms to include related to sleep and ability to be more affectionate with loved ones. He was still experiencing moderate intrusions, avoidance, negative beliefs, and hypervigilance and wished to continue treatment through peer support groups. He had already completed courses of both cognitive processing therapy and prolonged exposure therapy, both considered gold-standard psychotherapy treatments for PTSD. 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 MST with associated PTSD as relevant to the misconduct leading to discharge. (2) Did the condition exist or experience occur during military service? Yes. Application includes VA documentation and medical records supporting diagnosis of PTSD secondary to MST that occurred in approximately 1978. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. Although the charge sheet is not in the file, the available records support AWOL as the basis of separation. Should the Board accept this basis, PTSD due to MST provides psychiatric mitigation for this misconduct. The natural history and sequelae of PTSD is marked by avoidance behaviors to include AWOL. Such behavior may be particularly likely if the applicant had attempted to report the incident with limited support, as he claims. BOARD DISCUSSION: 1. 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 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 considered the advising official findings that PTSD due to MST provides psychiatric mitigation for this misconduct. The natural history and sequelae of PTSD is marked by avoidance behaviors to include AWOL. Such behavior may be particularly likely if the applicant had attempted to report the incident with limited support, as so stated by the applicant. The Board noted the applicant’s medical documentation to support his claims of PTSD due to military sexual trauma. However, the Board found there was insufficient evidence based on the absence of supporting documentation while in service. 2. The Board noted the applicant provided no post service achievements or letters of support that may have mitigated the applicant character of service during his discharge. The Board agreed there is insufficient evidence of in-service mitigation to overcome the misconduct. Based on the evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. Therefore, relief was denied. 3. The applicant’s request for a personal appearance hearing 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 hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X 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, 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. Title 10, U.S. Code, Section 1556, provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. AR 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 begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. 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. 4. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. 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. b. 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. c. Chapter 10 provided that a member who had committed an offense or offenses, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 5. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR), on 3 September 2014, to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC 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. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, Traumatic Brain Injury, 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 Service DRBs and 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 grounds. 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) AR20230000305 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1