IN THE CASE OF: BOARD DATE: 21 September 2022 DOCKET NUMBER: AR20220003708 APPLICANT’S REQUEST: * upgrade his under other than honorable discharge to honorable or under honorable conditions (general) * change narrative reason for separation APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Letter from Army Review Boards Agency * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 17 May 1999 * Offender Search * Character Letter * Unofficial Academic Transcript * 4 x Certificates of Completion 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 Discharge Review Board or the Army Board for Correction of Military Records (ABCMR).??? 2. 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. 3. The applicant states, in effect: a. He is asking for a discharge upgrade because he made a terrible mistake when he was absent without leave (AWOL). He had family problems and was not thinking right. He takes full responsibility for his mistake. b. Since his separation, he has focused on doing good and having a good life. He has no record with the police and has gotten three different degrees. c. He is a deacon in his church and has been for over 12 years. He volunteers to feed the homeless. d. He deeply regrets his mistake of going AWOL and asks the Board for clemency ant to upgrade his discharge to honorable or under honorable conditions (general) and change the narrative reason for separation. e. He has a job in aircraft [sic]. He is a single father of a five-year-old daughter. He has served as a deacon at church for over 12 years. f. He is a member of Xi Iota Alpha Sigma Lambda for Honor Society for adult learners and has three different degrees in Assembly Mechanics, Composite Fabrication Technology, and computer numerical control (CNC) operator from University. g. It has been several years since his discharge and who he is now [sic] does not reflect his character now. 4. Though the Board should not consider the applicant's previous cases as a whole in their decision, they should consider that in his previous case he indicated he suffered from mental health problems. That case did not provide a medical review regarding his mental health issues. The Board should only consider the fact that the applicant may have suffered from mental health issues at the time of his discharge and utilize the medical review that was provided for this case in making their determination regarding the applicant's discharge. 5. The applicant's service records contain the following documents for the Board's consideration: a. On 16 October 1995, the applicant enlisted in the U.S. Army Reserve (USAR) delayed entry program (DEP) for a period of 8 years. On 30 January 1996, the applicant was discharged from the USAR DEP and entered active duty for a period of 3 years. His DA Form 2-1 (Personnel Qualification Record) shows he entered one station unit training on 20 February 1996. b. On 27 March 1995, as part of his enlistment, a DA Form 2808 (Report of Medical Examination) was completed on the applicant and shows he had no mental health issues and was qualified for enlistment in the Army. c. The applicant's service record is void of DA Forms 4187 (Personnel Action) showing changes in his duty status; however, on 23 December 1998, the commander of the Personnel Control Facility, preferred one charge of AWOL against the applicant for being AWOL from on or about 16 November 1998 to on or about 22 December 1998. d. On 24 December 1998, after consulting with counsel, the applicant requested discharge in-lieu of trial by court-martial, under chapter 10 (Discharge In-Lieu of Trial by Court-Martial), Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel). In his request, he affirmed no one had subjected him to coercion and that counsel had advised him of the implications of his request. He also acknowledged he was guilty of the charge. He elected not to submit a statement in his own behalf and did not request a physical evaluation prior to separation. e. On 23 April 1999, a Memorandum, Subject: Transmittal of Charges shows the applicant's immediate commander recommended trail by Special Court-Martial authorized to adjudge a bad-conduct discharge. f. On 23 April 1999, a memorandum was completed by the applicant's immediate commander stating the applicant's request for discharge was administratively correct and met the requirements for discharge under the provisions of Chapter 10, AR 635- 200. g. On 29 April 1999, the Chief, Criminal Law Division completed a memorandum stating he had reviewed the applicant's request for discharge and there was no legal objection to further processing in accordance with the unit commander's recommendation. h. The applicant's chain of command recommendations was not available for the Board's consideration; however, in an undated memorandum, the appropriate approval authority approved the applicant's request and directed he be furnished an under other than honorable conditions discharge. i. On 17 May 1999, the applicant was discharged accordingly under the provisions of AR 635-200, chapter 10. DD Form 214 shows he had completed 3 years, 2 months, and 12 days of active duty service with 3 months and 14 days of total prior inactive service. He had lost time from 16 November 1998 to 21 December 1998. He was awarded or authorized the: * Army Achievement Medal * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar * Sharpshooter Marksmanship Qualification Badge with Grenade Bar 6. The applicant provides the following documents for the Board's consideration: a. A letter from the Army Review Board's Agency (ARBA) dated 8 July 2021, which states he was receiving the letter as part of a settlement agreement in a class-action lawsuit filed in federal court. ARBA had agreed to accept reapplications from a group of former Soldiers who previously requested that the Army Discharge Review Board (ADRB) upgrade their discharge. The applicant was receiving the letter because he was eligible to submit a new application. b. A document entitled Offender Search, from December 2021, in the applicant's name, which indicates "No Offenders Found." c. A character letter from the applicant's reverend, dated 11 November 2021, which states, he has been the applicant's reverend for 18 years. The applicant has been a faithful servant of the church and community. He is a hard worker and serves others in the church and has a big heart. He is the single father of a little girl, which he raised in their church where he is also a deacon. People make mistakes in life and God forgives them and they are made whole again. He is a good man and a pillar in the church. d. An unofficial transcript, dated 2 September 2020, showing his program of study was an Associate in Applied Science. e. Four certificates, which show he was a member of or completed the following: * Xi Iota Alpha Sigma Lambda, 23 September 2019 * Technical Certificate in Assembly Mechanic, 17 December 2018 * Technical Certificate in Composite Fabrication Technology, 17 December 2018 * Technical Certificate in CNC Operator, 17 December 2018 7. 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. 8. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), and the VA's Joint Legacy Viewer (JLV). There were no records in the Health Artifacts Image Management Solutions (HAIMS). The applicant requests a discharge upgrade to Honorable or General, Under Honorable Conditions. The applicant’s case was previously reviewed by ABCMR 24Aug2020 and Army Discharge Review Board 07Mar2012. a. The applicant was discharged under authority of AR 635-200 chapter 10 in lieu of trial by court-martial. The records showed that he was absent without leave from 16Nov1998 until he was returned to military control 22Dec1998. At the time, the applicant elected NOT to submit a statement—the reason listed for his going AWOL was ‘personal reasons’. b. The 27Mar1995 Report of Medical Examination (for enlistment) revealed of particular note, a prominent and enlarged tip of the right ulnar bone at the wrist (“club hand”). Ulnar deviation was to 0 degrees; and he had combined radial and ulnar deviation to greater than 30 degrees. There was no reported history of injury. He was initially deemed NOT qualified; however, he was apparently cleared after orthopedic consult. His initial medical history also included that he was overweight; his urine was positive for marijuana; he had multiple scars (left arm, and right leg x2); and he had moderate asymptomatic pes planus (flat feet). His ultimate physical profile was PULHES 111111. Approximately 25 years after discharge from service, the first available records at the VA indicated that the applicant was reporting an in-service injury to his right wrist and possible in-service right forearm surgery. In the 29Sep2020 Primary Care Note, he reported remote right wrist fracture while in the military in the 1990’s due to a fall. During the 12Nov2020 Orthopedic Surgery Consult, the applicant reported that he originally injured the right wrist injury while doing physical training in 1997. Radial deviation was noted during the exam, but the degree to which was not documented. There was also a swan-neck deformity of the right ring and little finger. He had undergone an ulnar shortening osteotomy surgery in 1998 (another report indicated that the surgery took place in 1999, 30Jul2021 Community Care note). After the surgery, the right arm function was “decent”. Over time, the condition worsened. The exam revealed that he could not make a fist, he had minimal flexion/extension at the wrist, and minimal supination/pronation at the elbow. He could not lift his arm above the shoulder. And finally, during the 26Apr2022 Advanced Orthopedics Associates note, the applicant reported a right wrist injury on 01Jun1996 during a fall. The notes found in JLV were carefully reviewed because in the prior request to ABCMR for relief, the applicant reportedly contended that mental health issues as well as injury to right wrist and back pain impacted his decision to go AWOL. It was noted that the reported in-service wrist injury, had varied documented injury time frames, and involved the site of the pre-service right hand/wrist/arm deformity. It was also noted that the applicant (right hand dominant) completed training in 3 seemingly hands-on certifications in 2018 (approximately 3 decades after the forearm surgery). The VA providers/examiners did not indicate that they were able to view the original in-service treatment records firsthand. Although the VA service connected the applicant at 0% for Limited Motion of Wrist, there were no service treatment records available for review to corroborate service aggravation of his pre-service right wrist condition. At the time, he had elected not to have a separation examination. c. A Mental Health Evaluation Report was not found. The November 2021 character reference from the applicant’s clergyman was considered. JLV search today revealed that depression and PTSD screening was negative (29Sep2020Nurse/Primary Care Addendum). Records available for review did not show that the applicant deployed, nor did they show that the applicant was diagnosed with PTSD, TBI, MST or other BH condition. The applicant’s request for discharge upgrade was also considered in relation to the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 August 2017, Clarifying Guidance. Since there was no documentation found in support of a BH condition while in service, there was no medical evidence to support mitigation of the AWOL misconduct in accordance with liberal consideration guidance. d. Based on records available for review, medical evidence was insufficient to support that the applicant had a physical or mental health condition that was a cause or significant contributing cause of the AWOL offense which contributed to the reason for his discharge. e. Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) No. The available documentation did not reveal a BH or physical condition that may excuse or mitigate the reason for discharge. (2) Did the condition exist, or did the experience during military service? (a) N/A (3) Does the condition or experience actually excuse or mitigate the discharge? (a) N/A BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, 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. The Board found his letters of support and his accomplishments since his discharge commendable. However, upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding insufficient evidence to support that the applicant had a physical or mental health condition that was a cause or significant contributing cause of the AWOL offense which contributed to the reason for his discharge. ABCMR is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. AR 635-200 (Personnel Separations Enlisted Personnel), in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. It provides: a. An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. A general discharge was a separation under honorable conditions and applied to those Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 5 establishes policy and prescribes procedures for separating members for Secretarial authority convenience of the government. Separation under this paragraph is the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memorandums. d. Chapter 10 applied to Soldiers who had committed an offense or offenses for which the punishment under the Uniform Code of Military Justice 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 following being granted access to counsel. The Soldier was to be given a reasonable amount of time to consult with counsel prior to making his/her decision. 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. 2. 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 Post-Traumatic Stress Disorder (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. 3. 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. 4. 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//