IN THE CASE OF: BOARD DATE: 8 August 2022 DOCKET NUMBER: AR20220001915 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge * to appear before the Board via video or telephone APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 5-page self-authored statement * Orders 084-604 issued by the , , , on 24 March 2004 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), 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 after leaving the Army nearly 20 years ago, he has no regrets. He believes an upgrade is warranted because of his age at the time and the fact he made decisions under duress. The person he has become since leaving the military is a true testament of his character. There were many discrepancies during his military service; a few were his fault, but others were brought on by his chain of command. a. He enlisted for training in military occupational specialty (MOS) 91W (Healthcare Specialist) but could not attend training until a slot became available. In the meantime, his unit was mobilized for deployment to Iraq and his leadership informed him that he was being sent to school to be trained in MOS 12B (Combat Engineer). He advised them there was nothing in his enlistment contract referring to MOS 12B and he only enlisted because he wanted to be a medic. His leadership assured him they would address getting him to 91W training upon return from deployment. He was pulled over and charged with Driving Under the Influence (DUI) the night of his notification that he was going to trained in MOS 12B. The unit was still on drill status, so the arrest was not made while on active-duty orders. He served the mandated 72-hour sentence for the state of Ohio and paid all his fines before he deployed. b. While in Germany preparing for transition to Iraq, he was drinking with a noncommissioned officer (NCO) from his unit and two others from a different unit. When he returned to his room, he was confronted and jumped by all three and sustained an injury to his right shoulder in the process. He spent 2 days in a German hospital and the NCO from his unit reported him as absent without leave (AWOL) during this time. Upon returning to Rhein Mein Airbase, Germany, he was advised that military police (MP) were looking for him. He immediately reported to the MPs and they informed his unit that he was accounted for. An Air Force doctor evaluated his condition and advised his unit that he needed immediate medical attention and would not be able to perform his duties until his shoulder healed. His leadership said he needed to report to his unit as ordered and he would be provided the proper medical care in theater. c. Upon arrival at Camp Castle, Kuwait, he was placed in a sick call tent with three other Soldiers since he could not perform his MOS duties. The NCO in charge (NCOIC) of the tent, Staff Sergeant (SSG) called him discriminatory names like "Nigger" on more than one occasion. He kept reporting what was happening, but nothing was ever done. When he asked to see an orthopedic doctor, he was told they would get to it when they could. Meanwhile, he was required to conduct police call in the desert for two or three hours at a time without a break. After a couple of months his shoulder improved enough for him to perform limited MOS duties. d. He began experiencing numerous sleepless nights and started seeing a psychiatrist at Camp Doha, Kuwait. He was prescribed Ambien and some type of depression medication. While there, he visited the Inspector General's (IG) office and requested that his unit be investigated for discrimination and the carelessness shown toward his injury but was advised he did not have sufficient information for them to take any kind of action. So, he filed an Equal Employment Opportunity (EEO) complaint. He was then ordered to Iraq for duty. e. One day he was instructed to lift approximately 25, 150-pound bags of concrete mix and not to take all day to do so. As he attempted to comply it put him in too much pain, so he reported back to the NCOIC in charge. At this point he started being pushed by the NCOIC and eventually began pushing back, telling the NCOIC not to put his hands on him. He attempted to make his way outside so he could let someone in his chain of command know what was happening and was met by two other NCOs. All three NCOs pinned him in a corner, kneed him and slammed him into the wall several times. This angered him even more and he cursed at them and told them to let him go. When they let him go, he threw his Kevlar helmet into an empty hallway trying to vent his frustration. He walked upstairs to the roof to smoke a cigarette and was followed by the NCOIC who kept saying things to further anger him. The MPs were called in addition to the battalion commander and a lawyer from the 265th Judge Advocate General (JAG) unit. f. During this period, he was awaiting a decision on whether he would be allowed to return to Ohio to attend court for a child custody case. He was advised that if he said anything, he would be court-martialed, put in jail and would not be able to go home for his case. He was taken to the 265th JAG and was advised by a captain that he could not counsel him because if it went through a trial, he would have to be the one to represent the unit. He was advised he could indeed fight what was going on and pursue the battery and mistreatment by his unit. However, he would not be able to return home for his child custody case. His rank was taken, and he was ordered to forfeit a month and a half of pay. g. He was allowed to return to Ohio for his child custody case. While there, he communicated via email with the Investigating Officer (IO) for his EEO complaint. Upon returning to Iraq, he reported to his battalion commander to discuss the findings of the investigation. He was advised there was sufficient evidence to support his claim because the IO had overheard the battalion commander say some things that could be perceived as racial statements. As they discussed the findings of the complaint, the applicant recalls there was a line for the commander to either concur or non-concur. The battalion commander said he denied the allegations but assured him that action would be taken, and the applicant would be assigned to another company as it was his duty to comply with the findings. The applicant requested transfer to another unit but was denied. He was left in the same unit and nothing changed. h. As things continued to progress, he was told he was not stable enough to carry a weapon. He was again being made to conduct police call in the desert, but this time without a weapon. He was repeatedly counseled for offenses he did not commit, such as being late and accessing pornographic websites on government computers. As a result, his computer usage was taken away and he was not allowed to contact his family or his lawyer despite the fact his grandfather was experiencing medical difficulties. As the false accusations continued to grow, he was given a choice to be tried by court- martial and possibly lose or to accept an administrative separation in lieu of court- martial. He chose to accept the separation and was sent to Fort Bragg, North Carolina (NC), to demobilize. He was immediately called to the IG office and asked to provide a statement about the wrongdoing he witnessed during his time with the 1092nd Engineer Battalion, like sending people back to the U.S. for schools and then letting them remain there for a long amount of time and letting them get paid for no reason. Afterward, he was outprocessed with a discharge UOTHC and reentry code of 4. 3. On his DD Form 149, the applicant notes that Post-Traumatic Stress Disorder (PTSD) and other mental health issues are related to his request, as a contributing and mitigating factor in the circumstances that resulted in his separation. 4. On 24 June 2002, having had prior service in the Air Force Reserve, the applicant enlisted in the Army National Guard (ARNG) for a period of 7 years and 17 weeks. His enlistment documents show he was to receive training in MOS 91W. He was assigned to Headquarters and Headquarters Company (HHC), 1092nd Engineer Construction Battalion (ECB). 5. Orders show the applicant was released from duty as a Combat Medical Specialist in Duty MOS (DMOS) 91W assigned to HHC, 1092nd ECB and transferred to Company C, 1092nd ECB for duty as a Vehicle Driver in DMOS (12B) effective 2 February 2003. 6. The applicant completed training for MOS 12B on 21 February 2003 and was awarded 12B as his Primary MOS (PMOS) effective 22 February 2003. 7. The applicant entered a period of active-duty service on 3 February 2003. He deployed to Iraq/Kuwait from 10 June 2003 to 6 August 2003 and from 15 November 2003 to 12 February 2004. 8. The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, his record contains: a. Orders 283-623 issued by the State of, , , on 10 October 2003 show he was reduced in rank/grade from Private First Class (PFC)/E-3 to Private (PV1)/E-1 effective 28 September 2003, based on misconduct, under the provisions National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management System), Paragraph 11- 61c (Reduction for Misconduct for Civil Conviction). b. Orders 064-0294 issued by XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC on 4 March 2004, which show he was discharged from the Active Reserves effective 31 March 2004 in the rank/grade of PV1/E-1. c. Orders 084-604 issued by the on 24 March 2004, which show he was discharged UOTHC from the ARNG and as a Reserve of the Army effective 31 March 2004. The reason for this action was cited as in lieu of trial by court-martial, under the authority of NGR 600-200, paragraph 8-27 (In Lieu of Trial by Court-Martial). d. A DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows on 31 March 2004 he was discharged from the ARNG in the rank of PV1, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, in lieu of trial by court-martial. He was credited with 1 year, 1 month, and 28 days of net active service this period. His service was characterized as UOTHC. (1) He was awarded or authorized the: * National Defense Service Medal * Armed Forces Reserve Medal with Mobilization Device * Army Service Ribbon (2) His Reentry Eligibility (RE) Code as "4" e. A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) which shows he was discharged UOTHC from the ARNG based on request for discharge in lieu of a court-martial. 9. The available record is void of any evidence showing the applicant was subjected to racial discrimination or that he was diagnosed with any mental health or medical condition during his period of service. 10. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 11. 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. 12. 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. 13. Clemency guidance to the Service Boards for Correction of Military/Navy Records (BCM/NRs) 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. 14. 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. 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) were not in use during his time in service. His military hardcopy medical record was not available for review. A review of JLV indicates the applicant was seen for a behavioral health intake on 19 Sept 2006. He reported his mood as euthymic and was currently on Paxil for anxiety. He reported continued hypervigilance, initial insomnia and avoidant behaviors. He reported attending college in West Virginia. He requested a medication evaluation but did not return to the clinic. The applicant has 3 medical conditions that are service connected (migraine headaches, impairment of clavicle, and lumbosacral or cervical strain) but are rated at 0%. The applicant asserted PTSD and other mental health were issues related to his upgrade request but no psychiatric records were provided for review. 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. In addition, without specifics regarding the misconduct that led to his discharge an advisory regarding mitigation can’t be provided. 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) 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: 1. 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. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion, 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 conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of psychiatric records, 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. 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, USC 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, USC, Section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by 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 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. 5. Army Regulation 635-200, in effect at the time, stated, in paragraph 1-13 (Reduction in grade), when a Soldier was to be discharged UOTHC, 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). 6. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service 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; 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. 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) AR20220001915 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1