IN THE CASE OF: BOARD DATE: 28 June 2023 DOCKET NUMBER: AR20230000310 APPLICANT REQUESTS: correction of his military service record to reflect the following: * Restore rank to Specialist Four (SP4)/E-4 at the time of discharge * Remove DA Forms 2627-1 (Record of Proceedings Under Article 15 Uniform Code of Military Justice (UCMJ) * A personal appearance before the Board via video or telephone APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * National Personal Records Center (NPRC) letter, 23 November 2005 * DD Form 4 (Enlistment Contract – Armed Forces of the United States), 18 January 1968 * DA Form 20 (Enlisted Qualification Record) * DA Form 2627-1, 6 January 1970 * DA Form 2627-1, 7 December 1970 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), ending 25 March 1971 * Letter Orders Number 12-1327513, 19 December 1973 * Driver License/Veterans Affairs (VA) Medical Identification Card * Medical Records * VA Benefits Compensation Rating Decision, 30 January 2008 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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, in pertinent part, he is seeking to have his E-4 rank restored at the time of discharge. The reduction in rank to private first class (PFC)/E-3 was a result of retaliation secondary to a Military Sexual Trauma (MST), while deployed in Vietnam. Additionally, he requests removal of both Article 15s from his record as they were events that occurred as a result of Post-Traumatic Stress Disorder (PTSD) stressors and coping mechanisms. a. On 27 May 1969, while in a bathroom outhouse with multiple open toilets, a sergeant (SGT) was seated on the toilet beside him and reached over and touched his genitals. He stood up to leave and the SGT told him he would take his rank from him. The following day, in formation, his SP4 patch was torn from his uniform in front of the other Soldiers. He was never given a copy of the documentation for the Article 15, reduction of rank, or informed of the reason for the reduction. He never reported the events as he was embarrassed and ashamed. Subsequently, the two Article 15s he received were retaliatory and fraudulent. These actions led to the events where he was absent without leave and caused him to feel anger, shame, and anxiety secondary to his exposure to trauma in Vietnam and the MST experience. b. He was not aware of the options he could seek to correct his record until reviewing his service records in 2022 and sharing the above details with his mental health therapist and the shame of the circumstances. 3. A review of the applicant's available service records reflects the following: a. On 18 January 1968, he enlisted in the Regular Army for a period of 3 years at the rank of private (PVT)/E-1. b. DA Form 20, Item 33 (Appointments and Reductions) shows his rank as follows: * PVT (Permanent(P))/E-1, effective 18 January 1968 * Private (PV2(P))/E-2, effective 18 May 1968 * PFC (P)/E-3, effective 20 October 1968 * SP4 (Temporary(T))/E-4, effective 19 December 1968 * PFC/E-3, effective 12 February 1970 * PV2/E-2, effective 12 February 1970 * PFC/E-3, effective 8 May 1970 c. On 30 May 1969, the 630th Transportation Company issued Unit Orders Number 30, reducing him in rank to PFC, effective 28 May 1969, for misconduct under Article 15, UCMJ and Army Regulation (AR) 27-15 (Nonjudicial Punishment). d. On 6 January 1970, the applicant accepted Non-Judicial Punishment (NJP) under the provisions of Article 15, UCMJ, for the following: (1) Section I (Notification) On or about 12 October 1969, at Fort Bliss, TX, he did, without authority, absent himself from his unit to wit: A Battery Special Troops, located at Fort Bliss, TX, and did remain so absent until on or about 18 December 1969. (2) Section III (Imposition of Punishment) reduce to Private (PV2)/E-2 and forfeiture of pay for 2 months. e. On 8 January 1970, Headquarters Troop Command, U.S. Army Garrison, Fort Carson, CO, issued Unit Orders Number 3, reducing him in rank from PFC to PV2 (P). f. On 19 June 1970, Headquarters and Headquarters Company, 2nd Battalion (Mechanized), 61st Infantry issued Unit Orders Number 47, promoting him to the rank of PFC (P) with a retroactive effective date of 8 May 1970. g. On 7 December 1970, the applicant accepted NJP under the provisions of Article 15 UCMJ, for the following: (1) Section I (Notification) On or about 0900 hours, 31 October 1970, at Fort Carson, CO, he did without authority, absent himself from his place of duty to wit: Brigade Guard, and did remain so absent until on or about 1100 hours, 31 October 1970, in violation of Article 86 (Failure to go to an appointed place of duty). (2) Section III (Imposition of Punishment) reduce to PFC/E-3 (Suspend 30 days) and forfeiture of pay for 1 month. h. DD Form 214, ending 25 March 1971 reflects an honorable release from active duty by reason of expiration of term of service. Item 5a (Grade, Rate or Rank) shows PFC/E-3 and item 26a (Non-Pay Periods Time Lost) shows 12 October 1969 through 17 December 1969. He was transferred to the U.S. Army Reserve (USAR). i. On 19 December 1973, the Office of the Adjutant General, U.S. Army Reserve Components Personnel and Administration Center issued Letter Orders Number 12-1327513 discharging him from the USAR, effective 1 January 1974. 4. The applicant provides the following: a. NPRC letter, dated 23 November 2005, replying to the applicant’s request for copies of his personnel records. b. Driver License/VA Medical Identification Card showing he is a veteran with service-connected benefits. c. Medical Records which show his treatment for mental health issues to include MST related to events while serving on active duty and deployment in Vietnam. d. VA Benefits Compensation Rating Decision, dated 30 January 2008 which reflect compensation for his service-connected mental health issues to include PTSD from his service in Vietnam from 12 September 1968 to 3 August 1969. 5. On 10 February 2023, the Criminal Investigation Division Crime Records Center provided a report for the applicant for the incident of MST stating a search of the Army Criminal file indexes utilizing the information provided revealed no records pertaining to the applicant. It is advised that records at the center are Criminal Investigative and Military Police Reports and are indexed by personal identifiers such as names, social security numbers, dates and places of birth and other pertinent data to enable the positive identification of individuals. 6. MEDICAL REVIEW: a. The applicant requests restoration of rank to Specialist Four (SP4)E/4 and removal of DA Forms 2627-1 (Records of Proceedings Under Article 15) from his records. He contends his misconduct was related to PTSD/MST. 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 enlisted into the Regular Army on 18 January 1968; 2) On 6 January 1970, the applicant accepted Non-Judicial Punishment (NJP) under the provisions of Article 15, UCMJ, for being AWOL from on or about 12 October 1969 to on or about 18 December 1969; 3) On 7 December 1970, the applicant accepted Non-Judicial Punishment (NJP) under the provisions of Article 15, UCMJ, for being AWOL from on or about 0900 hours 31 October 1970 to on or about 1100 hours 31 October 1970; 4) DD Form 214, ending 25 March 1971 reflects an honorable release from active duty by reason of expiration of term of service. Item 5a (Grade, Rate or Rank) shows PFC/E-3 and item 26a (Non-Pay Periods Time Lost) shows 12 October 1969 through 17 December 1969. He was transferred to the U.S. Army Reserve (USAR). c. The VA electronic medical record, JLV, ROP, and casefiles were reviewed. The military electronic medical record, AHLTA, was not reviewed as it was not in use during the applicant’s time in service. No military BH-related records were provided for review. A review of JLV showed the applicant 100 percent SC for PTSD secondary to MST characterized by a SGT reaching over and touching the applicant’s genitals while sitting on the toilet next to him. The applicant reported immediately leaving the area and, while leaving, being threatened by the perpetrator that he would take his rank. According to the applicant, he did not report the incident due to shame and embarrassment. The applicant’s first BH-related engagement with the VA appears to have occurred at the , VA on or about 1 November 2004 via telephone encounter. The encounter note showed the provider contacted the applicant after receiving a call from the applicant’s spouse with concerns of him having flashbacks two days prior and apparently out of medication. The encounter note was sparse on content but contained a diagnosis of PTSD and instruction for the applicant to contact pharmacy for medication. Psychiatric records from 1 November 2005 through 27 July 2007 showed the applicant treated for PTSD, via medication management, and phone consult with varying effect. Encounter note dated 31 August 2007 showed the provider spoke with the wife who expressed concerns of her husband changes, while trying various medications, to include suicidal ideation, geographic disorientation, confusion, and social phobia. The note also referenced the applicant having severe depression and PTSD. The applicant, provider, and spouse devised and agreed to a safety plan, and it was determined the applicant did not warrant psychiatric hospitalization. d. Encounter note dated 10 November 2008 showed the reporting continued struggles with PTSD and MDD symptoms. He reported continued SI w/out plan, inability to leave his ranch for other than medical appointment, ongoing confusion, memory problems, and occasional visual hallucination. The provider noted the applicant “still appeared ill but clearly better than one year ago”. He also noted the applicant was granted 100 percent SC for PTSD. Records showed the provider conducted medication reconciliation and scheduled the applicant for continued outpatient treatment for PTSD and MDD. Records showed the applicant has remained engaged in outpatient BH treatment, consistently, through 16 June 2023. e. The applicant is seeking restoration of rank and removal of removal of DA Forms 2627-1 from his records. He contends his misconduct was related to MST. A review of the records was void of any BH-related diagnosis or treatment history during service. Post-service records showed the applicant 100 percent SC for PTSD secondary to MST. As there is an association between PTSD and avoidant behavior, to include going AWOL, there is a nexus between the applicant’s diagnosis of PTSD/MST and misconduct characterized by going AWOL. Given the above it is the opinion of this advisor that the applicant misconduct was mitigated by his diagnosis. f. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence in the records that the applicant had a condition or experience during his time in service that mitigated his misconduct. 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 is 100 percent SC for PTSD/MST. 2. Did the condition exist, or experience occur during military service? Yes. 3. Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant is seeking restoration of rank and removal of removal of DA Forms 2627-1 from his records. He contends his misconduct was related to MST. A review of the records was void of any BH-related diagnosis or treatment history during service. Post-service records showed the applicant 100 percent SC for PTSD secondary to MST. As there is an association between PTSD and avoidant behavior, to include going AWOL, there is a nexus between the applicant’s diagnosis of PTSD/MST and misconduct characterized by going AWOL. Given the above it is the opinion of this advisor that the applicant misconduct was mitigated by his diagnosis. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the relief was 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. The Board noted there is a nexus between the applicant’s diagnosis of PTSD/MST and misconduct characterized by going AWOL. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advisory official who found sufficient evidence of in-service mitigating factors to weigh a clemency determination. The Board determined there is sufficient evidence to grant relief and remove the DA Forms 2627-1 (Record of Proceedings Under Article 15 Uniform Code of Military Justice (UCMJ), 6 January 1970 and 7 December 1970, from his Army Military Human Resource Record (AMHRR). Such relief will result in the restoration of his rank to Specialist Four (SP4)/ E-4 at the time of discharge. 2. 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 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * removal of the DA Form 2627-1, 6 January 1970, from his AMHRR; * removal of the DA Form 2627-1, 7 December 1970, from his AMHRR; * restoration of rank to Specialist Four (SP4)/E-4 at the time of discharge 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 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. AR 635-5 (Separation Documents) in effect at the time prescribes the separation documents that will be furnished each individual who is separated from the Army. Source documents will consist of DA Form 20. Item 5a; enter the grade in which serving at the time of separation, indicating whether permanent or temporary. 3. AR 600-8-104 (Army Military Human Resource Records Management (AMHRR)) governs the composition of the AMHRR and states that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the AMHRR, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board. 4. 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000310 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1