IN THE CASE OF: BOARD DATE: 6 April 2022 DOCKET NUMBER: AR20210015015 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Medical notes and documents * Letter written by * Letter written by * Certificate of Completion 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 he is requesting that his DD Form 214 be upgraded, so he can get medical care and be able to reside in transitional housing until he finds employment. He acknowledges that his behavior and self-medicating with alcohol got him in this outcome. He did not utilize mental health services offered at the Veterans Administration Medical Center (VAMC), Fort Sill, OK, because he was severely depressed because of the behaviors he attributes to being assigned to the 19th Maintenance Company. Instead of asking for help, he self-medicated and went absent without leave (AWOL) because he was afraid to admit that he was having mental issues. He is seeking help at the VAMCand he is participating in weekly therapy and groups. He has letters from VAMC staff that witness his willingness to get better. He understands that it was his responsibility to seek help for his mental issues and physical health. The applicant indicated on his application to the Board that post-traumatic stress disorder was related to his discharge. Please see documents attached that will be provided to the Board and Army Review Boards Agency medical staff for review and consideration]. 3. On 17 May 1985, the applicant enlisted in the U.S. Army Reserve (USAR) for a period of 8 years. On 19 November 1985, he completed initial active duty training and was released from IADT and transferred to his USAR unit. 4. On 28 October 1986, he was reassigned to the USAR Control Group (Annual Training) based on unsatisfactory participation. 5. On 24 August 1993, the applicant enlisted in the USAR for a period of 8 years. He enlisted in the Regular Army for a period of 3 years on 9 November 1993. 6. The applicant’s record contains multiple documents that show he was AWOL from 21 July 1995 until he was apprehended by civilian authorities and returned to military control on 30 September 1996. He was assigned to Battery A, Personnel and Support Battalion, Fort Sill, OK, effective 30 September 1996. 7. Court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice, Article 85, for desertion in route to new duty station. He was placed on excess leave pending his discharge from the Army effective 4 October 1996. 8. On 20 November 1996, Orders 325-21 issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, OK, discharged the applicant on 5 December 1996. 9. The applicant’s complete discharge was not contained in his record; nevertheless, his record contained a DD Form 214 that shows on 5 December 1996, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, in-lieu of trial by court-martial. He was given an UOTHC character of service. The applicant completed 1 year, 10 months, and 10 days of net active service this period with lost time from 21 July 1995 to 29 September 1996. He did not complete his first full term of service and was not awarded a personal decoration. 10. In connection with such a discharge, the applicant would have been charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Procedurally, the applicant would have been required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial. In doing so, the applicant would have been required to admit guilt to the stipulated offense(s) under the UCMJ. The request for discharge would have then been referred through command channels to the officer exercising discharge authority who would have directed the characterization of discharge. Upon approval, the applicant would have been administratively discharged without referral to trial. 11. 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 ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 12. 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 for the good of the service 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. 13. 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. 14. 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. 15. 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 at the time of his service. His hardcopy military medical record was not available for review. The applicant checked blocks for PTSD and other mental health as conditions related to his upgrade request. No medical records documenting a PTSD diagnosis were provided for review. A review of JLV indicates the applicant was evaluated on 4 Feb 2021. He reported alcohol dependence since age 11 due to his father making and selling corn liquor. He reported marijuana dependence since age 13, and cocaine dependence since age 18. He reported physical abuse as a child. The applicant stated he completed substance treatment in September 2017 but relapsed after 6 months. He was diagnosed with Alcohol Dependence Disorder, Cocaine Dependence Disorder, and Cannabis Dependence Disorder and referred to the substance abuse treatment program. He was enrolled in the residential treatment program from March 19th to May 4th, 2021. He also received housing assistance after the residential treatment ended and participates in group sessions for continued sobriety. There are no other psychiatric diagnoses in his VA record. 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. There is no documented psychiatric condition to consider with respect to mitigation of the misconduct that led to his discharge. a. Kurta 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) N/A (3) Does the condition or experience actually excuse or mitigate the discharge? (a) N/A (4) Does the condition or experience outweigh the discharge? (a) N/A BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, 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 no documented psychiatric condition to consider with respect to mitigation of the misconduct that led to his discharge. The Board noted the applicant provided insufficient evidence of post-service achievements or character letters of support for honorable conduct that might have mitigated the discharge characterization. The Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. 2. The governing regulation provides that a separation will be described as an entry- level separation, with service uncharacterized, if the separation action is initiated while a Soldier is in entry-level status. Soldiers in the USAR and ARNG are authorized and honorable discharge while in entry-level status only if they complete their active-duty schooling and earn their MOS. During deliberation, the Board determined the applicant completed his initial entry training and was awarded a military occupational specialty 76V (Material Storage & Handling Specialist). As such, his DD Form 214 should show the appropriate characterization of service as honorable. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the DD Form 214 for the period ending 19 November 1985 to show his characterization of service as honorable. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade of his under other than honorable conditions (UOTHC) discharge. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): N/A 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 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. 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. 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 (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. 5. 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) AR20210015015 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1