IN THE CASE OF: BOARD DATE: 13 July 2022 DOCKET NUMBER: AR20210017471 APPLICANT REQUESTS: an upgrade of his discharge from an under other than honorable discharge to an honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 4 August 2021 * DA Form 3340 (Request for Reenlistment or Extension in the Regular Army), 19 August 1998 * DD Form 4/1 (Enlistment/Reenlistment Document), dated 20 August 1998 * Permanent Order Number 083-004, dated 24 March 1999 * DA Form 1059 (Service School Academic Evaluation Report) * Orders Number 139-200, dated 19 May 1999 * Army Review Boards Agency letter, dated 18 February 2022 * Email, dated 22 February 2022 * ER Counseling and Consulting LLC letter, undated FACTS: 1. The applicant did not file within the three-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 August 1998, he reenlisted [and received] an honorable discharge. Therfore, he would like for his military records to reflect his honorable discharge instead of the under other than honorable condition discharge. He served honorably prior to his post-traumatic stress disorder (PTSD), which has caused his depression, and withdrawals. 3. The applicant provides: a. A DA Form 3340 (Request for Reenlistment or Extension in the Regular Army) which shows, in part, on 19 August 1998, his reenlistment in the U.S. Army for three years. b. A DA Form 4/1 (Enlistment/Reenlistment Document), which shows, in part, on 20 August 1998, his first re-enlistment in the U.S. Army for three years. c. Permanent Order Number 083-004, issued by Headquarters, U.S. Army Garrison, awarded him the Army Good Conduct Medal (First Award), for the period of service from 11 August 1995 to 10 August 1998. d. DA Form 1059 (Service School Academic Evaluation Report), which shows, in part, he attended the Primary Leadership Development Course 99-03, from 17 February 1999 to 18 March 1999, and exceeded course standards. e. Orders Number 139-200, 19 May 1999, issued by Headquarters, U.S. Army Medical Center and School, promoted him to the rank of sergeant. f. A letter from ARBA, 18 February 2022, requesting a copy of the applicant’s medical documents which supports his PTSD condition. g. A letter from ER Counseling and Consulting LLC, undated, which shows, in part, [applicant] is being treated for PTSD. Some of the challenges that the [applicants] experiences are with social interacting, sleep and maintaining employment. [Applicant] has been treated to manage triggers that exacerbate his symptoms, public and home, which derived from memories of his military experience. 4. A review of the applicant’s service record shows: a. His record is void of his enlistment contract; however, his DD Form 214 shows on 11 August 1995, he enlisted in the Regular Army. He completed training and was awarded military occupational specialty 11B (Infantryman). b. A DD Form 458 (Charge Sheet), dated 7 January 2000 shows, in part, on 20 December 1999, the applicant was reported in an absent without leave (AWOL) status. c. A DD Form 4187 (Personnel Action), dated 20 June 2000 shows, in part, on 19 January 2000, his duty status changed from AWOL to dropped from roll (DFR). d. A DD Form 616 (Report of Return of Absentee), dated 17 December 2000 shows, in part, on 17 December 2000 the applicant was apprehended by civilian authorities, and returned to military control. e. A DD Form 4187, dated 3 April 2001 shows, in part, on 16 March 2001, the applicant was present for duty (PDY) and returned to military control. f. A memorandum, subject: Medical Examination for Separation, dated 19 March 2001 shows, in part, the applicant was notified that a separation medical examination is voluntary in accordance with Department Army Pamphlet 600-8-10 (Military Human Resources Management Administrative Procedures), and Army Regulation 635-200 (Active Duty Enlisted Administrative Separations). The applicants’ statement of option shows: * He understood he is not required to undergo a medical examination for separation from active duty, and * He elected that he did not desire a separation medical examination g. DD Form 458 (Charge Sheet), dated 20 March 2001 shows, in part, the applicant on or about 20 December 1999, without authority and with intent to remain away permanently, the applicant absent himself from his unit to wit: Replacement Detachment, 101st Soldier Support Battalion, located at Fort Campbell, KY, and did remain so absent until on or about 16 March 2001. h. On 23 March 2001, the applicant consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an Under Other Than Honorable Conditions Discharge if this request is approved, and of the procedures and rights available to him. Following this consultation, the applicant requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request, he acknowledged: * He understood that submitting this request for discharge he acknowledge that he is guilty of the charges against him or of a lesser included offenses therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge. * He has been advised and understand the possible effects of an under other than honorable discharge * As a result of the issuance of such a discharge he will be deprived of many or all Army benefits that he may be ineligible for many or all benefits administered by the Veterans Administration and he may be deprived of rights and benefits as a veteran under both state and federal law * He understood that he may, up until the date the discharge authority approves his discharge, withdraw his acceptance of this discharge i. On 26 November 2001, the immediate commander recommended approval and that an Other Than Honorable Conditions Discharge Certificate be issued. j. On 13 December 2001, consistent with the chain of command recommendations, the separation authority approved the applicant's elimination from the service UP of AR 635-200, Chapter 10 and ordered the issuance of an Other Than Honorable Conditions Discharge Certificate and the applicant's reduction to private/E-1. k. Orders Number 007-0119, issued by U.S. Army Field Artillery Center and Fort Sill, 7 January 2002, which shows, in part, the [applicants] date of discharge, effective 14 January 2002. l. The applicant was discharged from active duty on 14 January 2002. His DD Form 214 shows he was discharged UP of AR 635-200, chapter 10, for the good of the service in lieu of court-martial, with the issuance of an under other than honorable certificate. He completed 5 years, 2 months and 2 days of active service. His DD Form 214 also shows he had lost time from 19991220-20010315. 5. There is no indication that the applicant requested an upgrade of his discharge from the Army Discharge Review Board within its 15-year statute of limitations. 6. By regulation (AR 635-200), a member who has committed an offense 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. A discharge under other than honorable conditions is normally considered appropriate. 7. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 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) were not in use at the time of his service. His hardcopy medical record was not available for review. The applicant asserted PTSD caused his depression and withdrawals. A note from a licensed professional counselor stated she treated the applicant starting in November 2021. She noted that he deals with triggers derived from his military experience. A review of his service record indicates no overseas/foreign service and no deployments. His separation packet indicates the applicant went AWOL for personal reasons and was disillusioned with the military. A review of JLV indicates the applicant has not been evaluated or treated in the VA system other than 2 COVID vaccinations in 2021. 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 behavioral health diagnosis at the time of his discharge. His diagnosis of PTSD was 20 years after his discharge. There is no documentation to suggest he did not meet retention standards at the time of his discharge. Military medical disability/retirement is not warranted. a. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) Yes, he has a current diagnosis of PTSD (2) Did the condition exist or experience occur during military service? (a) No (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 advisory official finding no documentation to support behavioral health diagnosis at the time of his discharge and 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. However, the Board determined the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately show his period of honorable service by granting a partial upgrade. 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 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 adding the following additional statement to item 18 (Remarks) of his DD Form 214 to show * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19950811 UNTIL 19980819 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 the applicant’s discharge to honorable. 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. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides 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. A discharge under other than honorable conditions is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade per Army Regulation 600–8–19. 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. 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 under other than honorable conditions, 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; TBI; sexual assault; sexual harassment. Boards were directed 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 that misconduct which 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. 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. 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) AR20210017471 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1