IN THE CASE OF: BOARD DATE: 22 July 2022 DOCKET NUMBER: AR20210016241 APPLICANT REQUESTS: The applicant requests: * an upgrade of the characterization of his service from "Under Other Than Honorable Conditions (UOTHC)" to "Under Honorable Conditions (General)" * the narrative reason for his separation changed to indicate he was separated due to a service incurred or aggravated mental health condition APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, United States 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, he suffered from Post-Traumatic Stress Disorder (PTSD) and other mental health conditions prior to entering the military. These conditions were aggravated during his period of service and contributed to his misconduct. 3. The applicant’s records show: a. On 29 September 1997, he underwent a pre-enlistment medical examination. His Standard Form 88 (Report of Medical Examination) shows there were not defects or diagnoses noted at the time, and he was found to be qualified for service. b. His DD Form 4 (Enlistment / Reenlistment Document - Armed Forces of the United States) shows, on 21 May 1998, he enlisted in the Army National Guard (ARNG) and as a member of the United States Army Reserve (USAR) for a period of 8 years. This form also shows, in part, he acknowledged his understanding that he must serve a total of 8 years. Any part of service not served on active duty must be served in a Reserve Component unless he was sooner discharged. He also acknowledged that as a member of the Ready Reserve, he may be required to perform active duty or active duty for training without his consent if he was not assigned to, or participating satisfactorily in, a unit of the Ready Reserve; and had not met his Reserve obligation; and had not served on active duty for a total of 24 months. c. His DD Form 1966 (Record of Military Processing - Armed Forces of the United States) shows he was to report back to the Military Entrance Processing Station (MEPS) on 8 September 1998 to enter active duty for the purpose of completing Basic Combat Training (BCT) and Advanced Individual Training (AIT) at Fort Leonard Wood, Missouri. He was scheduled to report for BCT on 8 September 1998 and for AIT on 13 November 1998. d. On 20 April 1999, his unit changed his duty status from Present for Duty (PDY) to Absent Without Leave (AWOL). e. On 19 May 1999, his unit changed his duty status from AWOL to Dropped from Rolls (DFR) and reported him as a deserter/absentee wanted by the Armed Forces. f. Orders 99-145-022 issued by Headquarters, USAR Command, Fort McPherson, Georgia on 25 May 1999 show he was released from attachment and assigned to Company E, 169th Engineer Battalion, 1st Engineer Brigade, United States Engineer Center and Fort Leonard Wood, Fort Leonard Wood, Missouri, effective 20 May 1999. This action was for the purpose of processing the applicant under the provisions of Army Regulation 630-10 (Personnel Absence Without Leave, Desertion, and Administration of Personnel Involved in Civilian Court Proceedings). g. Orders 116-12 issued by State of Military Department, Office of the Adjutant General, on 17 June 1999 show he was discharged from the ARNG and assigned to USAR Control Group (Reinforcement) effective 19 May 1999. This action was executed under the authority of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-5a (Dropped from the Rolls of the Army). h. A National Guard Bureau (NGB) Form 22 (NGB – Report of Separation and Record of Service) shows the applicant was discharged from the ARNG effective 19 May 1999 and transferred to USAR Control Group (Reinforcement) for completion of 7 years and 1 day of his statutory obligation. This action was executed under the authority of National Guard Regulation 600-200, paragraph 8-5a. His service was not characterized, he was not issued a discharge certificate, and he was assigned a Reentry Eligibility (RE) code of "RE-3." i. A DD Form 616 (Report of Return of Absentee) shows the applicant surrendered to military authorities and was returned to military control at on 1 June 1999. j. After being advised by defense counsel, the applicant knowingly, willingly, and voluntarily declared he was AWOL from the United States Army from on or about 20 April 1999 to on or about 1 June 1999. k. Orders show the applicant was assigned to United States Army Personnel Control Facility (USAPCF), United States Army Armor Center and Fort Knox, Fort Knox, Kentucky effective 1 June 1999 following his surrender to military authorities on 1 June 1999. l. On 14 June 1999, court-martial charges were preferred against the applicant for violation of Article 86, UCMJ by, without authority, absenting himself from his organization on or about 20 April 1999 and remaining so absent until on or about 1 June 1999. m. On 14 June 1999, the applicant voluntarily requested he be discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10 (Discharge in Lieu of Trial by Court-Martial). He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights, and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, Chapter 10. He elected not to submit statements in his own behalf. n. On 21 July 2000, his commander recommended his request to be discharged in lieu of court-martial be approved with a UOTHC discharge. o. On 14 December 2000, the appropriate authority approved the applicant's request with issuance of an UOTHC discharge under the provisions of Army Regulation 635- 200, Chapter 10. p. His service record is void of a mental evaluation or pre-separation medical examination. q. Orders, dated 11 January 2001, assigned him to United States Army Transition Center, Fort Knox, Kentucky, for separation processing and discharge effective 17 January 2001. r. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows on 17 January 2001, he was discharged accordingly. He was credited with completing 2 years, 2 months, and 29 days of net active service this period. He was credited with time lost due to AWOL from 20 April 1999 until 31 May 1999. He was in an excess leave status for 583 days from 15 June 1999 until 17 January 2001. His DD Form 214 contains the following entries in: (1) item 11 (Primary Specialty) – None (2) item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) – Expert Marksmanship Qualification Badge with Hand Grenade Bar and Marksman Marksmanship Qualification Badge with Hand Grenade Bar; (3) item 14 (Military Education) – None (4) item 18 (Remarks) – He did not complete his first full term of service (5) item 24 (Character of Service) – UOTHC (6) item 25 (Separation Authority) – Army Regulation 635-200, Chapter 10 (7) item 26 (Separation Code) – KFS (8) item 27 (Reentry Code) – 4; and (9) item 28 (Narrative Reason for Separation) – In Lieu of Trial by Court-Martial. 4. His record is void and he provides no evidence showing he was diagnosed with PTSD or any other medical condition before, during or after his period of service. 5. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. On 18 July 2011, the applicant was informed that after careful review of his application and all other available evidence, the ADRB determined that he was properly and equitably discharged. Accordingly, his request for a change in the character and/or reason for his discharge was denied. 6. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. a. The applicant desires to have the characterization of his service upgraded and the narrative reason for his separation changed to indicate he was separated due to a service aggravated condition because PTSD and other mental health conditions resulted in his misconduct. His record is void and he did not provide any evidence showing he was diagnosed with any type of behavioral health condition during his period of service. Additionally, he has not provided any evidence showing his discharge should be attributed to some other, more specific narrative reason for separation, or that such a reason should be considered more appropriate than the reason shown on his DD Form 214. b. At the time of the applicant's discharge, PTSD was largely unrecognized by the medical community and Department of the Defense (DOD). However, both the medical community and DOD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible re-characterization of their overall service even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. c. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part of mental health conditions, including PTSD. 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. d. National Guard Regulation 600-200, paragraph 8-5a, in effect at the time of the applicant's service, provided that upon receipt of the Active Order assigning the AWOL Soldier to the Active Army unit of attachment, the State would take action to discharge the Soldier from the State ARNG with an RE code of "RE-3." e. Army Regulation 635-200 states a chapter 10 is a voluntary discharge request in- lieu of trial by court martial. In doing so, he would have waived his opportunity to appear before a court-martial and risk a felony conviction. A characterization of UOTHC is authorized and normally considered appropriate; however, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service, he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 7. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 8. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Solutions (HAIMS) was not in use during his time in service. The applicant asserts he had a “mental handicap” prior to joining the service. He noted he was “agitated prior and after.” He checked the blocks for PTSD and other mental health on his application forms. A review of JLV indicates the applicant has received services in the VA starting in March 2018. On 27 Mar 2018, he was seen as part of outreach to incarcerated veterans. He was held on burglary charges and had a prior prison sentence of 2 years for assault (2015-17) and was on probation when he was arrested. He reported the tattoos all over his face and body make it difficult to find employment. He reported regular use of cannabis and methamphetamine. He reported prior diagnosis of Bipolar Disorder, ADHD, Obsessive Compulsive Disorder, and Schizoaffective Disorder. His next contact with the VA was via phone on 27 Nov 2020 for homelessness assistance. He continued to reach out in 2020 and 2021 to request housing and other support. On 10 Apr 2021, he reported recent release from jail and had not been taking his medication but had been smoking marijuana. He requested assistance with housing. He continued sporadic contact with the VA for emergencies and help with housing. The applicant never received behavioral health treatment through the VA other than ER visits. The last encounter dated 20 May 2022, indicates he was evaluated in the ER and a diagnosis of Bipolar Disorder was documented. The applicant is designated as emergency treatment only 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 no documentation to support a behavioral health diagnosis at the time of his discharge. Documentation shows he had a diagnosis of Bipolar Disorder 19 years after his discharge. There in no documentation to indicate he did not meet retention standards at the time of his discharge. a. Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) No (2) Did the condition exist or experience occur during military service? (a) No (3) Does the condition experience actually excuse or mitigate the discharge? (a) N/A (4) Does the condition or experience outweigh the discharge? (a) N/A BOARD DISCUSSION: The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical review and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the medical records and the review and conclusions of the reviewing official. The Board concurred with the medical reviewer finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. In addition, the Board concurred with the medical reviewer’s finding of insufficient evidence the contested medical conditions failed to meet retention standards during his period of service. Therefore, the Board determined referral to DES for consideration of a medical separation is not warranted. . 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, United States 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, United State Code, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (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. National Guard Regulation 600-200, in effect at the time of the applicant's service, established the standards, policies, and procedures for the management of ARNG enlisted Soldiers. Paragraph 8-5a, provided that upon receipt of the Active Order assigning the AWOL Soldier to the Active Army unit of attachment, the State would take action to discharge the Soldier from the State ARNG with a reentry eligibility (RE) code of "RE-3." 4. Army Regulation 630-10, in effect at the time of the applicant's service, established policies and procedures for reporting absences, procedures for special category absentees, DFR and the surrender of military personnel to civilian law enforcement authorities. It also refined policy and procedures for personnel in an AWOL status who were charged or convicted of a civilian or criminal offense or confined or restricted by a court order. Chapter 5 of this regulation established the procedures for ARNG and USAR members who failed to report for initial active duty for training and for those who were deemed to be deserters. ARNG and USAR Soldiers who were AWOL for 30 consecutive days were accessed into the strength of the Active Army and immediately DFR. 5. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an UOTHC discharge. b. 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. 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. d. When a Soldier is to be discharged UOTHC, the separation authority would direct an immediate reduction to the lowest enlisted grade. 6. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) 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. 7. 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; 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. 8. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military 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. 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) AR20210016241 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1