IN THE CASE OF: BOARD DATE: 21 November 2022 DOCKET NUMBER: AR20220003492 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record) . Health Record (one page) . DA Form 3822-R (Report of Mental Status Evaluation) FACTS: 1. The applicant did not file within the 3-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 he went absent without leave (AWOL) from the military because he was seeking help for his mental health. He was discouraged from seeking treatment by his supervisors and from his leadership. He tried to reach out for help through his leadership by making an appointment with mental health and was disregarded or turned away. He was told there was "nothing wrong with him" and to return to his work without ever being seen. His condition was never taken seriously by his leadership. He feels like Post-traumatic stress disorder (PTSD), depression and anxiety were caused during his time in service. It was also caused by the environment and traumatic events he endured and experienced. 3. The applicant enlisted in the Regular Army on 10 October 2002 for four years. His military occupational specialty was 25U (Signal Support Systems Specialist). The highest grade he attained was E-2. 4. Court-martial charges were preferred against the applicant on 26 July 2005, for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with three specifications of AWOL, from on or about: . 13 December 2004 through on or about 21 December 2004 . 23 December 2004 through on or about 7 June 2005 . 9 June 2005 through on or about 21 July 2005. 5. The applicant consulted with legal counsel on 27 July 2005 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a UOTHC discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State law and he might expect to encounter substantial prejudice in civilian life because of an UOTHC discharge. b. He was advised that he could submit statements in his own behalf; however, his record is void of a statement. 6. The separation authority approved the applicant's request for discharge on 6 August 2005 and directed his reduction to the lowest enlisted grade and the issuance of an other than honorable discharge. 7. The applicant was discharged on 17 August 2005. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. His characterization of service was UOTHC. He completed 2 years, 2 months, and 22 days of net active service. It also shows he was awarded or authorized the: . Army Achievement Medal . Global War on Terrorism Service Medal . National Defense Service Medal . Army Service Ribbon 8. 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. 9. The applicant petitioned the Army Discharge Review Board (ADRB) for a discharge upgrade. On 16 July 2010, the ADRB determined the applicant was properly and equitably discharge and denied his request for relief. 10. The applicant provides: a. A Report of Mental Status Evaluation, dated 5 February 2004, which shows his mood or affect as depressed. He had the mental capacity to understand and participate proceedings, and was mentally responsible. He was diagnosed with anxiety disorder, by a licensed clinical psychologist. b. Additionally, he provides a chronological record of medical care, dated 4 August 2005, that lists his prescribed medication. 11. 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. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 12. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his discharge under other than honorable conditions. He asserts PTSD and other mental health conditions leading to the circumstances of his discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: (1) Applicants asserts he was AWOL from the military because he was seeking help for his mental health after being discouraged from seeking help by his leadership. He feels like PTSD, depression, and anxiety were caused during his time in service by the environment and traumatic events he endured and experienced. (2) He enlisted into the RA on 10 Oct 2022. (3) Court-martial charges were preferred on 26 July 2005; DD Form 458 shows he was charged with 3 specifications of AWOL between December 2004 and July 2005. (4) Applicant was discharged on 17 August 2005 under AR 635-200 Chapter 10, in lieu of trial by court-martial, UOTHC. (5) On 16 July 2010 the ADRB denied his request for relief. (6) A Report of Mental Status Evaluation dated 5 February 2004 shows his mood or affect as depressed and he was diagnosed with anxiety disorder by a licensed clinical psychologist; a record of medical care dated 4 August 2005 lists medication to include Zoloft. c. The military electronic medical record, AHLTA, was reviewed. A 9 December 2004 encounter resulted in a diagnosis of Anxiety Disorder Not Otherwise Specified and occupational problem, and references use of needing refills of medications to include Zoloft (an antidepressant also used for anxiety) and Ambien (sleep medication). d. A review of VA records via JLV does not show any service-connected conditions. The database appears to be void of any encounters other than the AHLTA encounters considered above. e. A report of mental status evaluation DA 3822R dated 5 Feb 2004 includes diagnosis of Anxiety Disorder NOS and deemed him mentally responsible with the capacity to participate in proceedings. f. Additional documentation which appears to be a continuation sheet of the DA 3822R indicates veteran was originally seen on 15 Sep 2003 (or 04 per applicant?) with symptoms of Anxiety Disorder NOS. He was seen again several months later as a walk-in and again in January for a command directed evaluation. Documentation notes complaints of insomnia, worry, restlessness, thoughts of death, crying spells, weight loss, and social isolation. The documentation indicates “SM has refused treatment” and cites resistance to potential solutions for symptoms. “This behavior appears to be more motivated by his disregard for military discipline than by his mental health condition.” (Of note, it appears the applicant has made annotations on this form challenging the dates and veracity of some of the information to include that he refused care, citing command interference with care and “being targeted”). He was recommended to be separated via Chapter for misconduct and noted to be “an AWOL risk.” g. Additional supporting documents reviewed and appreciated to include letters of support and character statements. The BH advisor appreciates the applicant’s desire to improve his circumstances and how a discharge upgrade my assist in that process. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant asserts PTSD, depression, and anxiety caused during his time of service. 2. Did the condition exist or experience occur during military service? Yes. The applicant contends that the conditions occurred while he was on Active Duty. Medical records from his time in active service reference a diagnosis of Anxiety Disorder Not Otherwise Specified and use of medications typically used to treat depression, anxiety, and sleep concerns while in active service. 3. Does the condition or experience actually excuse or mitigate the discharge? Partially. The applicant has asserted mental health conditions associated with the circumstances of his discharge; his assertion alone is worthy of consideration by the Board. However, it is opinion of the Agency BH advisor that he has not provided evidence of a history of trauma, a diagnosis of PTSD or another mental health condition at the time of service which would rise to the level of mitigating the circumstances of his discharge. He was diagnosed with an anxiety disorder, but based on the available records and history, there is not compelling evidence that the natural history and sequelae of such a condition would mitigate the counts of AWOL. BOARD DISCUSSION: 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 agreed the applicant has not provided evidence of a history of trauma, a diagnosis of PTSD or another mental health condition at the time of service which would rise to the level of mitigating the circumstances of the time of his discharge. 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 post-service achievements or letters of reference in support of a clemency determination. Based upon a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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, 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 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: 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. c. Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 3. Title 10, USC, Section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency 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. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014, 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. 5. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on 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. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 6. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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//