IN THE CASE OF: BOARD DATE: 15 November 2021 DOCKET NUMBER: AR20210012868 APPLICANT REQUESTS: The applicant requests, in effect: * an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable * to add the Army Commendation Medal (ARCOM) and Army Achievement Medal (AAM) * to add his foreign service time * to correct his rank and pay grade APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Self-written statement * Medical documents * Department of Veterans Affairs (VA) decision on claim for upgrade of character of discharge * VA letter dated 20 March 2018 * Army Achievement Medal Certificate awarded on 1 May 2000 * Certificate of Recognition for completing rehabilitation, dated 3 April 2002 * Letter of Recommendation * Army/ACE Registry Transcript * United States Army Veteran document/slide 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 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. His discharge should be upgraded based on VA’s decision to upgrade his discharge for VA purposes. All of his service in the Army was and is by all means honorable. His time in the rank is specialist (E-4) and highest grade given was private first class (E-3). He never had any non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) or court-martials during his honorable service. His total enlisted service was 2 years, 7 months, and 16 days with 7 months of war-time service in Bosnia. While deployed to Bosnia and Herzegovina he was awarded an Army Commendation Medal (ARCOM) for duties performed. He was also attached to a Special Forces unit locked and loaded with NATO (North Atlantic Treaty Organization) forces to transfer women of Croatian victims of genocide through hostile territory to pray and morn at mass gravesites. He was attached to a unit that was the last war-time attachment to keep peace and transfer all duties to U.S. Army Reserve and NATO for peaceful life without war for Serbs and Croatians in their country. His honorable service made him a proud Army veteran of foreign wars. b. He also states: * after he got back stateside he had a difficult adjustment dealing with the mother of his child that was born during his deployment overseas * he developed a drinking problem that led to substance abuse; he told his noncommissioned officer (NCO) chain of command that he was going to his commander for help * he stood at attention at Headquarters and made a plea for help with his addictions * he was sent to mental health at Evans Army Hospital and was diagnosed with “substance induced organic mental disorder” * it was recommended to his unit for him to get rehab and continue service in the Army * he went absent without leave (AWOL) on 4 separate occasions for a total of 67 days * he needed surgery in his left arm for an infection; however, his NCO chain of command made him sign for a blood test for substance in his system so they could keep him from getting rehab help in the Army * his chain of command said they wanted him out of the Army and that they had no time for him * after his operation, all of his rank was taken from him and he was sent to Fort Sill, OK, for a Chapter 10 (in lieu of trial by court-martial), General Discharge; he was told this was his only option and he could not go through rehab * he was given leave by his chain of command at Fort Sill knowing he needed help; he was still dealing with his addictions and did not return in the allotted time he was given, as a result he was charged with AWOL * he asked again for rehab and was told a Chapter 10 discharge in lieu of court-martial was his only option * he was lost after his UOTHC discharge and had a hard time adjusting to civilian life; he asks the Board to upgrade his discharge based on his honorable service and post-service achievements 3. On 31 March 1999, the applicant enlisted in the Regular Army for a period of 3 years. 4. His Personnel Qualification Record shows he served in Bosnia from on or about 11 March to 18 September 2000 and he was awarded the North Atlantic Treaty Organization (NATO) Medal. The applicant provided a copy of an Army Achievement Medal Certificate that shows on 1 May 2000, he was awarded the AAM, Permanent Order Number 122-6. 5. The applicant’s record contains documentation that shows he was AWOL on 4 separate occasions, and court-martial charges were initially preferred against him on 18 January 2001. 6. On 22 March 2001, after returning from being AWOL and dropped from his unit’s rolls, the applicant indicated he did not desire a separation medical examination. 7. An AWOL/Deserter Returnee Statement completed by the applicant states, in pertinent part: * he left the Personnel Control Facility (PCF) to get his car out of the impound on leave, and money, repairs, and his wife held him up from getting back on time * he called the PCF and informed them he was getting back as fast as possible * he spoke with first sergeant C about the situation, and he had receipts for all things done * he did not see the chaplain or Red Cross before going AWOL * “without money it is hard to get things done” (the applicant provided this answer when asked his opinion and the question, what could the Army have done to prevent him from going AWOL?) * he knew because of his actions he could better provide for his family out of the Army; he must get to work and consolidate his bills 8. On 27 March 2001, court-martial charges were preferred against the applicant for violating Article 86 of the UCMJ. He was charged with 4 specifications of being AWOL from on or about: * 8 to 15 December 2000 * 20 December 2000 to 1 January 2001 * 18 to 30 January 2001 * 13 February to 21 March 2001 (more than 30 days), while assigned to the PCF, Fort Sill, OK 9. On 30 March 2001, after consulting with legal counsel the applicant voluntarily requested to be discharged in lieu of court-martial, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10. a. Legal counsel advised him of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ; of the possible effects and implications of an Under Other Than Honorable Discharge if the request was approved; and of the procedures and rights available to him. b. The applicant acknowledged that, he understood the effects and implications of the request for discharge. He also acknowledged he understood if his request for discharge was accepted, he may be discharged UOTHC, and as a result of the issuance of such a discharge, he would be deprived of many of all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He further understood that he may expect to encounter substantial prejudice in civilian life because of an Under Other Than Honorable Discharge. He elected not to submit a statement in his own behalf and he did not desire a physical evaluation prior to separation. c. His unit commander recommended approval of his request for discharge and stated, in pertinent part, the applicant had become disillusioned with the military. Retention of the applicant was not in the best interest of the Army. The legal office reviewed the applicant’s request for discharge in lieu of trial by court-martial and found no legal objections to further processing in accordance with the unit commander’s recommendations. d. On 17 December 2001, the separation authority approved the applicant’s request to be discharged in lieu of trial by court-martial under the provisions of Chapter 10, AR 635-200, and directed he be furnished an Under Other Than Honorable Conditions Discharge. 10. The applicant was discharged on 23 January 2002, under the provisions of AR 635- 200, Chapter 10, in lieu of trial by court-martial. The DD Form 214 he was issued shows his service was characterized as UOTHC and he was discharged in the rank and pay grade of private/E-1. He completed 2 years, 7 months, and 16 days of net active service with time lost during this period from 8 to 15 December 2000; 20 December 2000 to 1 January 2001; 18 to 30 January 2001; and 13 February to 21 March 2001. The applicant was in an excess leave status for 300 days from 30 March 2001 to 23 January 2002. He was awarded or authorized the Army Service Ribbon. 11. His record contained a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 9 December 2002, that shows the applicant's DD Form 214, for the period ending 23 January 2002, was corrected to show "item No. 12f (foreign service) – 0000 06 08” and "item No. 18 (remarks) – ADD Service in Bosnia 20000311 – 20000918//Nothing Follows”. 12. The applicant applied to the Army Discharge Review Board for an upgrade of his discharge; however, after reviewing the evidence of record, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request on 11 December 2009. 13. In support of his case, the applicant provided multiple documents listed under the applicant’s supporting documents considered by the board. The documents will be provided to the Board and Army Review Board Agency medical staff for review and consideration. 14. The applicant’s contentions were reviewed and carefully considered; nevertheless, the evidence of record shows the applicant stated he was AWOL from the PCF because of money, car repairs, and his wife held him up (personal reasons). The applicant also stated, in effect, he wanted out of the Army in order to better provide for his family. He needed to get to work and consolidate his bills. The applicant had many legitimate options through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review. He was charged due to the commission of offense(s) punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with legal counsel and requested to be discharged in lieu of trial by court-martial. He elected not to submit statements in his own behalf and declined a separation medical examination. Furthermore, during the separation process he presented no matters in defense, mitigation, or extenuation. In regards to the Department of Veterans Affairs’ honorable determination for VA purposes, the VA operates under its own separate laws and regulations. Lastly, he did not provide evidence and his record did not contain evidence that he was awarded the ARCOM. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. 15. AR 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 16. AR 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. Chapter 7 (Reductions in Grade) states, in pertinent part, when the separation authority determines that a soldier is to be discharged from the Service under other than honorable conditions, they will be reduced to the lowest enlisted grade. Board action is not required for this reduction. The commander having separation authority will, when directing a discharge under other than honorable conditions, or when directed by higher authority, direct the soldier to be reduced to private (PV1)/E-1. 17. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 18. Army Regulation 635-5 (Separation Documents), then in effect, established the standardized policy for preparing and distributing the DD Form 214. It stated that all decorations, service medals, campaign credits, and badges awarded or authorized will be entered on the DD Form 214. 19. The Office of the Undersecretary of Defense for Personnel and Readiness provides guidance that 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 mental health conditions, Traumatic Brain Injury (TBI), post- traumatic stress disorder (PTSD), sexual harassment and sexual assault. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 20. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. 21. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service military medical records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Solutions (HAIMS) was not in use at the time of service. There are two notes in AHLTA, an x-ray and a urinalysis result showing positive for methamphetamine A review of his hardcopy military medical record indicates he was diagnosed with Polysubstance Dependence on 15 May 2001. The Substance Induced Organic Mental Disorder indicates he was experiencing symptoms due to his substance use. He was admitted to a civilian facility from 15-17 May 2001. A review of his service record indicates he declined a separation physical. A review of JLV indicates the applicant applied for eligibility for VA care and the application was uploaded into the system on 25 Feb 2013. The VA has decided to grant him honorable character for VA purposes (treatment) only. He has not been evaluated or treated in the VA system. He does not have a service connected disability rating. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is documentation to support a behavioral health diagnosis (Polysubstance Abuse) at the time of his discharge. There is no documentation to suggest he did not meet retention standards at the time of his discharge. His psychiatric diagnosis is not a mitigating factor for the misconduct that led to his discharge. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief warranted. The Board carefully considered applicant’s contentions, military record and regulatory guidance. The Board considered the review of the Agency Medical Advisor and concurred with the finding that his psychiatric diagnosis is not a mitigating factor for the misconduct that led to his discharge. Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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. ADMINISTRATIVE NOTE(S): The Army Achievement Medal Certificate, Permanent Order Number 122-6, awarded on 1 May 2000 and DA Form 2-1 (Personnel Qualification Record) prepared on 1 April 1999, are sufficient to make the following administrative corrections to the applicant's DD Form 214 for the period ending on 23 January 2002 without action by the Board. The applicant’s DD Form 214 should be corrected by adding to item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the Army Achievement Medal and NATO Medal. 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 Army Board for Correction of Military Records (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. Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 3. Army Regulation 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. 4. AR 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. Chapter 7 (Reductions in Grade) states, in pertinent part, when the separation authority determines that a soldier is to be discharged from the Service under other than honorable conditions, they will be reduced to the lowest enlisted grade. Board action is not required for this reduction. The commander having separation authority will, when directing a discharge under other than honorable conditions, or when directed by higher authority, direct the soldier to be reduced to private (PV1)/E-1. 5. Army Regulation 635-5 (Separation Documents), then in effect, established the standardized policy for preparing and distributing the DD Form 214. It stated that all decorations, service medals, campaign credits, and badges awarded or authorized will be entered on the DD Form 214. 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. 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. 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. a. 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. b. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210012868 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEDING 1