IN THE CASE OF: BOARD DATE: 15 June 2022 DOCKET NUMBER: AR20210014687 APPLICANT’S REQUEST: * an upgrade of his Under Other Than Honorable Conditions (UOTHC) discharge in order to become eligible to receive veterans' medical benefits * to appear at his own expense before the Board in the metropolitan area APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) FACTS: 1. Standard of Review. When arriving at its findings and making its determinations, the Board shall review the petition for requested relief independent from any previous petitions submitted to the Army Review Discharge Board or the Army Board for Correction of Military Records (ABCMR). 2. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552 (b); however, the 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. 3. The applicant states he has been out of the service for 17 years and admits he made mistakes as a young adult in the service. He feels he has paid the price for how he acted and desires an upgrade because he is in need of medical services. 4. The applicant's service records show: a. On 17 February 1999, the applicant enlisted into the Regular Army, at the age of 18 years old, for a period of 3 years. His records provide a DA Form 2-1 (Personnel Qualification Record) and an Enlisted Record Brief w/conflicting assignment information. It appears, upon completion of One Station Unit Training at Fort Benning, Georgia, he was assigned to 1st of the 24th Infantry, Fort Lewis, WA from 1 July 1999 to 18 December 2000, where he was promoted to the highest grade of private first class (PFC), however on 1 May 2000, he was reduced to private (PV2/E2). b. On 20 December 2000 he had a permanent change of stations, and reported to 1st Battalion, 503rd Infantry, Camp Casey Korea. On 1 April 2001, he was promoted to specialist (SPC/E4) and on 17 January 2002, he reenlisted in the Army for a period of 4 Years. c. On 16 February 2003, his duty status shows as being in a "Casual" status enroute to Fort Riley Kansas. On 5 May 2003, 2nd Battalion, 34th Armor, Fort Riley Kansas show his duty status as Absent Without Leave (AWOL). c. Three DA Forms 3975 (Military Police Report) show the applicant's unit reported his duty status as: * AWOL, effective 8 May 2003 * Dropped from Rolls (DFR), effective 6 June 2003 * Surrendered and Returned to Military Control, effective 6 October 2003 d. A DA Form 2672 (Record of Proceedings Under Article 15, Uniformed Code of Military Justice (UCMJ)) shows the applicant accepted nonjudicial punishment under the provisions of Article 15, UCMJ for violation of Article 86, UCMJ by without authority, absenting himself from his unit on or about 5 May 2003 and remaining so absent until on or about 6 October 2003. His punishment consisted of: reduction from the rank/grade of Private First Class/E-3 to Private/E-1; forfeiture of $575.00 pay per month for 2 months; extra duty for 45 days; and restriction for 45 days. e. Four DA Forms 4856 (Developmental Counseling Form) show the applicant was counseled on 15, 16, 17 and 18 December 2003 for violation of Article 92, UCMJ by failing to obey a lawful order and violation of Article 86 by being AWOL and failing to go to his place of duty. Each time, he was advised that if he did not improve his behavior and conduct, his commander could initiate separation action in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel). If separated, he could receive an Honorable; General Under Honorable Conditions; or UOTHC characterization of service. If separated with a less than Honorable characterization, he could receive substantial prejudice in the civilian sector, effecting civilian employment, and Veteran's benefits. f. Two DA Forms 4187 (Personnel Action) show the applicant's unit changed his duty status as follows: * from PDY to AWOL effective 0630 hours, 19 December 2003 * from AWOL to PDY effective 0630 hours, 20 December 2003 g. Two DA Forms 4856 show the applicant was counseled on 19 and 29 December 2003 for violation of Article 92, UCMJ by failing to obey a lawful order and violation of Article 86 by being AWOL and failing to go to his place of duty. Each time, he was advised that if he did not improve his behavior and conduct, his commander could initiate separation action in accordance with Army Regulation 635-200 and reminded of the possible outcomes and consequences of such action. h. A DA Form 4856 shows the applicant was counseled on 21 January 2004 for two violations of Article 92, UCMJ. He was advised that if he did not improve his behavior and conduct, his commander could initiate separation action in accordance with Army Regulation 635-200 and reminded of the possible outcomes and consequences of such action. The specific violations were: * being derelict in his duties by sleeping inside a military vehicle * demonstrating insubordinate conduct toward a noncommissioned officer (NCO) i. Five DA Forms 4187 show the applicant's unit changed his duty status as follows: * from PDY to AWOL effective 0630 hours, 17 February 2004 * from AWOL to DFR effective 0630 hours, 18 March 2004 * from DFR to PDY effective 0630 hours, 2 April 2004 * from PDY to DFR effective 0630 hours, 5 April 2004 * from DFR to PDY effective 0600 hours, 19 May 2004 j. A DD Form 458 (Charge Sheet) shows the applicant's company commander preferred court-martial charges against him for the following seven Specifications of violating Article 86, UCMJ and one Specification of violating Article 91, UCMJ: (1) Charge I: Violation of Article 86, UCMJ * Specification 1: on or about 15 December 2003, without authority, failed to go at the time prescribed to his appointed place of duty, to wit 0900 formation. * Specification 2: on or about 16 December 2003, without authority, failed to go at the time prescribed to his appointed place of duty, to wit 0900 formation. * Specification 3: on or about 17 December 2003, without authority, failed to go at the time prescribed to his appointed place of duty, to wit 0900 formation. * Specification 4: on or about 18 December 2003, without authority, failed to go at the time prescribed to his appointed place of duty, to wit 0900 formation. * Specification 5: on or about 29 December 2003, without authority, failed to go at the time prescribed to his appointed place of duty, to wit 0900 formation. * Specification 6: on or about 17 February 2004, without authority, absenting himself from his unit and remaining so absent until on or about 2 April 2004. * Specification 7: on or about 5 April 2004, without authority, absenting himself from his unit and remaining so absent until on or about 19 May 2004. (2) Charge II: Violation of Article 91, UCMJ on or about 21 January 2004, being disrespectful in deportment toward an NCO, then known to be a superior NCO, who was in the execution of his office, by not going to parade rest, walking away while being spoken to, and mumbling under his breath. k. Two DA Forms 4187 show the applicant's unit changed his duty status as follows: * from PDY to AWOL effective 0630 hours, 28 June 2004 * from AWOL to PDY effective 0930 hours, 30 June 2004 l. The applicant's company, battalion and brigade commanders recommended he be tried by Special Court-Martial empowered to adjudge a bad conduct discharge. m. On 30 June 2004, after consulting with counsel, the applicant voluntarily requested discharge in-lieu of trial by court-martial, under the provisions of Army Regulation 635-200, Chapter 10 (Discharge in Lieu of Trial by Court-Martial). In his request, he verified no one had subjected him to coercion and that counsel had advised him of the implications of his request. He further acknowledged he was guilty of the charge and he elected not to submit a statement in his own behalf. His chain of command recommend approval of his request with the issuance of a UOTHC discharge and forwarded the request to the separation authority for consideration. n. On 14 July 2004, the separation authority approved the applicant's request and ordered the applicant's separation with a service characterization of UOTHC. o. Orders issued by Headquarters, 24th Infantry Division (Mechanized) and Fort Riley, Fort Riley, Kansas and his DD Form 214 show he was discharged from active duty on 20 July 2004 in the rank/grade of private/E-1. He was credited with completion of 5 years, 2 months, and 1 day of net active service during this period. His DD Form 214 shows in: (1) Item 13 (Decorations, Medals, Badges, Citations and Campaign awarded or authorized): He was awarded or authorized the Army Lapel Button, Army Achievement Medal, Army Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Service Medal, and Army Service Ribbon. (2) Item 18 (Remarks) - He was credited with continuous honorable service from 17 February 1999 through 16 January 2002 (2 years and 11 months) and had completed his first full term of service. (3) block 24 (Character of Service) - His characterization of service was UOTHC. (4) block 25 (Separation Authority) - The authority for his separation was Army Regulation 635-200, Chapter 10. (5) block 26 (Separation Code) - His Separation Program Designator Code was "KFS." (6) block 27 (Reentry Code) - His Reentry Eligibility (RE) Code was "4." (7) block 28 (Narrative Reason for Separation) - The narrative reason for his separation was "In Lieu of Trial by Court-Martial." (8) block 29 (Dates of Time Lost During This Period) – He was credited with 93 days of lost time due to being AWOL on 19 December 2003 (1 day); from 17 February 2004 to 1 April 2004 (45 days); from 4 April 2004 to 18 May 2004 (45 days); and from 28 June 2004 to 29 June 2004 (2 days). 5. 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 requests an upgrade of his UOTHC discharge in order to become eligible to receive medical benefits and to appear at his own expense before the Board in the metropolitan area. b. His record shows he missed formation on seven occasions, violated Article 86, UCMJ on four occasions when he went AWOL for a total of 93 days accumulated over four different periods of time. c. During the applicant's era of service, Soldiers charged with UCMJ violations, for which a punitive discharge was among the maximum punishments, could request separation under Army Regulation 635-200, Chapter 10; such requests were voluntary and offered in-lieu of trial by court-martial. d. The Manual for Courts-Martial then in effect stated the punishment for violation of Article 86 (AWOL for 30 or more days) included a bad conduct discharge; when the AWOL period was terminated by an apprehension, a dishonorable discharge was authorized. e. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits. f. In regards to the applicant’s request for a personal appearance, Army Regulation 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. g. His DD Form 214 shows he had 2 years and 11 months of continuous honorable service. During his second period of enlistment his misconduct led to him being reduced and voluntarily discharged in lieu of court-martial. 6. 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. 7. MEDICAL REVIEW: The applicant is applying to the Army Board for Correction of Military Records (ABCMR) for an upgrade of his Under Other Than Honorable Conditions (UOTHC) discharge in order to become eligible to receive veterans' medical benefits. a. The applicant states he has been out of the service for 17 years and admits he made mistakes as a young adult in the service. He feels he has paid the price for how he acted and desires an upgrade because he is in need of medical services. b. The ABCMR Behavioral Health (BH) Advisor was asked to review this case. Documentation reviewed includes: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) c. VA electronic medical record, Joint Legacy Viewer (JLV) was reviewed. d. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) were reviewed. e. AHLTA and JLV contain no BH diagnoses. JLV contains 6 encounters (all Aug 2018) related to an ER and hospital admission, with a primary diagnosis of Cavitary Lesion of Lung and Hemoptysis. There is no indication that the applicant has a BH disorder, nor is he asserting this in his application. f. After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant does not have any mitigating BH diagnosis for his misconduct of 7 FTRs and 2 AWOLs. The applicant met retention standards at the time of discharge. The applicant is not service connected. g. Kurta Questions (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? (a) No. (2) Did the condition exist or experience occur during military service? (a) N/A (3) Does the condition or experience actually excuse or mitigate the discharge? (a) N/A - After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant does not have any mitigating BH diagnosis for his misconduct of 7 FTRs and 2 AWOLs. The applicant met retention standards at the time of discharge. The applicant is not service connected. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, 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 concurred with the advising official finding the applicant does not have any mitigating BH diagnosis for his misconduct of 7 FTRs and 2 AWOLs. The applicant met retention standards at the time of discharge. The Board found insufficient evidence of in-service mitigating factors for the serious misconduct to weigh a clemency determination. The Board noted, the applicant provided insufficient evidence of post-service achievements or character letters of support that would attest to his honorable conduct that might have mitigated the discharge characterization. Furthermore, the Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge. Therefore, the Board denied relief. 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 : : : 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): Not Applicable REFERENCES: 1. Title 10, United States Code, 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 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. 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. Army Regulation 15-185 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. 4. Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. 5. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge when subsequent honest and faithful service over a greater period outweighed disqualifying entries in the Soldier's military record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. A general discharge was a separation from the Army under honorable conditions. When authorized, separation authorities could issue a general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial in the following circumstances. (1) An under-other-than-honorable-conditions discharge will be directed only by a commander exercising general court-martial authority, a general officer in command who has a judge advocate or legal advisor available to his/her command, higher authority, or the commander exercising special court-martial convening authority over the Soldier who submitted a request for discharge in lieu of court-martial (see chapter 10) when delegated authority to approve such requests. (2) When the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army. Examples of factors that may be considered include the following: * Use of force or violence to produce bodily injury or death * Abuse of a position of trust * Disregard by a superior of customary superior-subordinate relationships * Acts or omissions that endanger the security of the United States or the health and welfare of other Soldiers of the Army * Deliberate acts or omissions that seriously endanger the health and safety of other persons d. A bad conduct discharge will be given to a Soldier pursuant only to an approved sentence of a general or special court-martial. The appellate review had to have been completed and the affirmed sentence then ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. e. A dishonorable discharge will be given to a Soldier pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. f. Chapter 10 applied to Soldiers who had committed an offense or offenses for which the punishment under the UCMJ included a punitive (i.e. bad conduct or dishonorable) discharge. Soldiers could voluntarily request discharge once charges had been preferred; commanders were responsible for ensuring such requests were personal decisions, made without coercion and after having access to counsel. The regulation stated the Soldier should receive a reasonable amount of time (not less than 72 hours) to consult with counsel prior to making his/her decision. Once the decision was made, the Soldier was required to make his/her request in writing, which certified he/she had been counseled, understood his/her rights, could receive an under other than honorable conditions character of service, and recognized the adverse nature of such a character of service. In addition, the Soldier could submit statements in his/her own behalf for the separation authority's consideration prior to a decision on approval and character of service. 6. The Manual for Courts-Martial, United States 1984, Appendix 12 (Maximum Punishment Chart) showed the punishment for violation of Article 86 (AWOL for 30 or more days) included a bad conduct discharge; when the AWOL period was terminated by an apprehension, a dishonorable discharge was authorized. 7. Army Regulation 635-200, in effect at the time, stated, in paragraph 1-13 (Reduction in grade), when a Soldier was to be discharged under other than honorable conditions, the separation authority was required to direct the immediate reduction of those Soldiers to the lowest enlisted grade per guidance in Army Regulation 600-8-19 (Enlisted Promotions and Reductions), Chapter 7 (Reductions in Grade). 8. 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. 9. 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. 10. 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) AR20210014687 1 ARMY BOARD FOR CORRETION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1