ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 September 2021 DOCKET NUMBER: AR20210010553 APPLICANT REQUESTS: * reconsideration of his previous requests for an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable; and * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 * Applicant Letter, dated 3 November 2020 * The Calm (Coping with Anxiety: Learning and Managing) Group Certificate, dated 9 February 2011 * RT-130 Fire Line Annual Refresher Certificate of Training, dated 12 April 2011 * Medical Excerpt, Section 4 (Physician's Certification), dated 25 March 2019 * Power of Attorney for Obtaining Records, dated 24 September 2020 * Standard Form 180 (Request Pertaining to Military Records), dated 24 September 2020 * re Letter, dated 30 November 2020 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers on 9 June 2015 and on 13 May 2021. 2. The applicant states he has medical evidence linking his post-traumatic stress disorder (PTSD) and other reasons to his UOTHC discharge. He believes previous Boards failed to take into account his medical doctor’s evaluations during and after his military service. He has been treated for his PTSD symptoms since he was released from the Army and continues to be treated. In his application and self-authored letter, the applicant states he would like the Board to consider the documents he has submitted in support of his application. a. In October 2000, during a training mission at, he was involved in an accident while laying and prepping a mine field. It was raining and he slipped while tossing constantine wire to other Soldiers. He fell hard and hit his tail bone, back, and head. He was told by superiors to wait to go to sick call when they return to Fort Stewart, Georgia. He believes he was targeted and was told he was faking. b. In January 2001, his platoon sergeant started harassing him again. He was harassed for a period of 6 months. The platoon sergeant accused him of buying alcohol for the Soldiers that were under aged and this was not true. His squad leader gave him permission to go home on leave for the labor day weekend. He drove to to see his sick grandmother. The police pulled him over for a minor traffic violation and detained him for an old warrant from 1997. They held him on a military hold and contacted someone from his company. When his platoon sergeant found out, he told the police to leave him jail. He was in jail for 2 weeks until someone from Fort Polk came to pick him up. This is why he was absent without leave (AWOL). c. The PTSD has had an astounding effect on his life. He has been in court ordered PTSD classes. The Veterans Affairs medical center insisted that he attend calm, anxiety, and PTSD classes. He has been unsuccessful with obtaining mental and financial help. He feels isolated and constantly in fear for his safety. 3. The applicant's service records show: a. He enlisted in the Regular Army on 24 March 2000. He completed basic combat and advanced individual training. He was awarded military occupational specialty (MOS) 12B (Combat Engineers). b. On 17 October 2000, he accepted non-judicial punishment under Article 15, uniform code of military justice, for being AWOL from 5-14 September 2000. * he did not demand trial by court-martial; * he requested a closed hearing; * he did not request a person to speak on his behalf and indicated he would present matters in defense, mitigation, and/or extenuation; * his punishment consisted of forfeiture of $234.00 pay per month for 1 month (suspended to be automatically remitted if not vacated before 17 April 2001), and extra duty and restriction for 14 days; and * he did not appeal c. The DA Form 4187 (Personnel Action) shows his duty status changed from present for duty to AWOL effective 0630hrs on 25 January 2001. d. A second DA Form 4187 shows his duty status changed from AWOL to dropped from the rolls effective 0630hrs on 26 January 2001. e. On 17 June 2001, his DD Form 458 (Charge Sheet) indicates he was charged with one specification of being AWOL from 25 January 2001 through 14 June 2001. f. On 29 June 2001, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. 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 AR 635-200, chapter 10. He signed a request for discharge for the Good of the Service and indicated he would not submit statements in his own behalf. g. On 31 January 2002, his commander recommended approval of the applicant's request and issuance of a discharge UOTHC. He stated that the applicant had become disillusioned with the military and retention of the applicant was not in the best interest of the Army. h. His record is void a medical and/or mental health exam and any evidence he was diagnosed with PTSD or PTSD related conditions prior to his entry to active duty, and/or during his period of service. i. On 8 February 2002, the Chief, Criminal Law Division, found no legal objection to further processing of the applicant's discharge in accordance with the commander's recommendation. The appropriate authority approved the applicant's request and directed the issuance of an UOTHC discharge and reduction to the lowest enlisted grade of private/E1. j. On 11 March 2002, he was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he was discharged from active duty under the provisions of AR 635- 200, chapter 10 (In Lieu of Trial by Court-Martial) with an UOTHC characterization of service. He completed 1 year, 6 months, and 28 days of net active service during this period including lost time from 25 January 2001 to 13 June 2001. He was not awarded or authorized an award. 4. In support of his application the applicant provides: a. A Calm (Coping with Anxiety: Learning and Managing) Group certificate, dated 9 February 2011. b. An RT-130 Fire Line Annual Refresher certificate of training, dated 12 April 2011. 5. The applicant applied to the Army Discharge Review Board for an upgrade of his UOTHC discharge. On 15 July 2014, after careful review of his application, military records and all other available evidence, the Army Discharge Review Board determined that the applicant was properly and equitably discharged. Accordingly, his request for a change in the character and/or reason of his discharge was denied. 6. On 23 September and 8 October 2014, the applicant applied to the ABCMR for an upgrade to his UOTHC discharge to a medical discharge due to PTSD. On 9 June 2015, the evidence presented did not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case was insufficient as a basis for correction of the records of the individual concerned and his request was denied. 7. In support of his application the applicant provides: A medical excerpt, section 4 (Physician's Certification), dated 25 March 2019, showing the physician diagnosed the applicant with sciatica, back pain, anxiety, and PTSD. 8. On 4 September 2019, the applicant applied to the ABCMR for an upgrade to his UOTHC discharge. On 13 May 2021, the Board determined it could reach a fair and equitable decision in the case without a personal appearance by the applicant. The Board also determined partial relief was warranted. One potential outcome discussed was to deny relief based upon the short term of honorable service completed prior to the AWOL offense leading to the applicant’s separation. However, based upon the findings and recommendation of the medical advisor, the Board concluded there was sufficient evidence to upgrade the applicant’s characterization of service to general, under honorable conditions. 9. In support of his application the applicant provides: The letter, dated 30 November 2020, states the applicant has been a patient with them since 2010. Prior to his care there, he received treatment at Terros which is a mental health treatment center. Terros provided him treatment since his release from service in the military. His treatment included medication for PTSD, insomnia, and back pain symptoms. He was also part of a PTSD designed program for veterans called Calm Group. The applicant completed the classes and received a certificate for his hours and participation in the Calm Group at Terros. The applicant suffers from severe PTSD and insomnia. concluded his symptoms and diagnosis are related to his service in the military. 10. 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. 11. 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. 12. In regards to the applicant's request for a personal appearance, AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. 13. In reaching its determination, the Board can consider the applicant’s petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency. 14. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an upgrade of his 11 March 2002 discharge characterized as under other than honorable conditions. He states his period of absence without leave was due to PTSD. b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 shows he entered the regular Army on 24 March 2000 and was discharged on 11 March 2002 under the separation authority provided chapter 10 of AR 635-200, Active Duty Enlisted Administrative Separations (1 November 2000): Discharge in Lieu of Trial by Court-Martial. His reentry code of 4 denotes a non-waiverable disqualification and ineligible for enlistment in the military except for certain moral and administration disqualifications (10 U.S. Code § 1553). c. He states in his self-authored statement: (1) “In October 2000, while during a training mission in Ft. Irwin, CA, I was involved in an accident while laying and prepping a mine field. I slipped off the APC while tossing concertina wire to fellow soldiers and fell hard and him be tailbone, back, and head … I was told to wait to go to sick-call until we returned back to Ft. Stewart. I was target because of it, and was told I was faking it, but I wasn’t ... (2) I never got to make any deployments, but I have suffered PTSD severely since my departure from the service …” d. A Charge Sheet (DD form 458) shows the applicant was charged with absence without leave (AWOL) from 25 January 2001 thru 14 June 2001. e. On 29 June 2001, the applicant voluntarily requested discharge in lieu of trial by court-marital under chapter 10 of AR 635-200. The battalion commander approved his discharge with an under other than honorable characterization of service on 8 February 2002. f. A 30 November 2020 memorandum from a treating physician states the applicant “suffers from severe PTSD and insomnia. From my medical evaluation of {Applicant}, I have concluded his symptoms and diagnosis are related to his service in the military.” g. In accordance with the Liberal Consideration guidance, it is the opinion of the ARBA medical advisor that his PTSD mitigates his period of absence without leave as this condition is associated avoidant behavior. It is the opinion of the ARBA medical advisor that a discharge upgrade is warranted. 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 applicant’s contentions, the military record, a medical review, and regulatory guidance were carefully considered. Evidence of record shows the applicant’s UOTHC characterization was upgraded to Under Honorable Conditions (General) in Docket Number on 13 May 2021. The Board agreed the applicant may not have known of the decision during the post-board corrective action process, and believes this application is premature. The Board determined there is insufficient evidence to grant any further relief. 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 to amend the decision of the ABCMR set forth in Docket Number on 13 May 2021. 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. AR 15-185 (ABCMR), effective 29 March 2000, prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), effective 1 January 2001, set forth the basic authority for the separation of enlisted personnel. a. When a Soldier is to be discharged UOTHC, the separation authority would direct an immediate reduction to the lowest enlisted grade. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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. Unless otherwise ineligible, a Soldier may receive an honorable discharge if he/she has, during his/her current enlistment, period of obligated service, or any extensions thereof, received a personal decoration. 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. A discharge UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. e. Chapter 10 states a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, 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 a bad conduct or dishonorable discharge. f. A medical examination was not required, however a Soldier may request an examination under AR 40-501 (Standards of Medical Fitness), chapter 8. 3. 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. 4. 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. 5. 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) AR20210010553 1 1