IN THE CASE OF: BOARD DATE: 8 September 2022 DOCKET NUMBER: AR20220003822 APPLICANT’S REQUEST: The issuance of two separate DD Forms 214 (Certificate of Release or Discharge from Active Duty) to reflect his periods of enlistment in lieu of just one showing he was discharged under other than honorable conditions (UOTHC). APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 3340 (Request for Reenlistment or extension in the Regular Army) * DD Form 4 (Enlistment/Reenlistment Document) * DA Form 3286 (Statements for Enlistment) * DA Form 4789 (Statement of Entitlement to Selective Reenlistment Bonus) * DD Form 214, for the period ending14 September 2012 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, in effect, he needs a DD Form 214 showing he was honorably discharged upon completion of his first term of enlistment. He served honorably during his entire first term of enlistment and it should be separate from his second term following his reenlistment. Although the applicant indicated on his DD Form 149 that Post-Traumatic Stress Disorder (PTSD) and other mental health issues/conditions are related to his request, he did not discuss how or provide any documentation pertaining to any behavioral health matters. 3. The applicant's service records show: a. On 28 July 2007, the applicant enlisted into the Regular Army for a period of 3 years and 16 weeks. Upon completion of initial entry training, he was assigned to a unit at Fort Campbell, Kentucky. b. On 12 May 2010, he reenlisted for a period of 4 years. The documents provided by the applicant all pertain to this reenlistment and are present in his Army Military Human Resource Record. c. He was promoted to the rank/grade of sergeant (SGT)/E-5 effective 1 December 2010, and was subsequently reassigned to a unit at Joint Base Lewis-McChord (JBLM), Washington. d. DA Forms 4856 (Developmental Counseling Form) show he was formally counseled on nine occasions for numerous disciplinary infractions between 9 March and 4 April 2012. He was advised that continued behavior of this nature could result in punishment under the Uniform Code of Military Justice (UCMJ) and/or initiation of actions to administratively separate him from the Army under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) as well as the potential consequences of such actions. His infractions included: * multiple incidents of failing to report * being absent without out leave on 9 March 2012 * indebtedness to the Army/Air Force Exchange Service establishment resulting from dishonored checks * failing to sign in at the staff duty office as part of corrective training * being command directed to move into the barracks * failing to provide a plan for moving out of on-post housing * failing to report to a financial counseling appointment at Army community services * failure to pay a past due bill at a furniture and appliance store e. A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) shows the applicant accepted nonjudicial punishment on 23 April 2012. His punishment consisted of reduction to the rank/grade of specialist (SPC)/E-4; forfeiture of $1,133.00 pay for two months, suspended, to be automatically remitted if not vacated before 23 July 2012; extra duty for 45 days; and restriction for 45 days. His offenses were as follows: * Violation of Article 92, UCMJ by violating a lawful general order by wrongfully possessing and using bath salts * Five counts of violation of Article 86 UCMJ by failing to go at the time prescribed to his appointed place of duty on 8, 9, 26, 28 (0630) and 28 (0800) March 2012 f. Although his record is void of a DD Form 458 (Charge Sheet), a DD Form 2707 (Confinement Order) shows the applicant was placed into pre-trial confinement at the U.S. Army Confinement Facility (USARCF), JBLM, Washington on 7 June 2012 for the following offenses/charges of UCMJ Articles violated: Article 86 (8 counts), Article 91 (2 counts), Article 92 (2 counts), Article 95, Article 128 (2 counts), Article 134 (2 counts). g. On 12 September 2012, after consulting with counsel, the applicant voluntarily requested discharge in-lieu of trial by court-martial, under the provisions of Army Regulation 635-200, Chapter 10 (Discharge in Lieu of Trial by Court-Martial). In his request, he verified no one had subjected him to coercion and that counsel had advised him of the implications of his request. He further acknowledged he was guilty of the charge, he elected not to submit a statement in his own behalf. h. His immediate and intermediate commanders recommended approval with the issuance of a discharge UOTHC and forwarded the request to the separation authority for consideration on 12 September 2012. i. The separation authority approved the applicant's request; directed his reduction to the rank/grade of private (PV1)/E-1; and directed his discharge UOTHC. j. Orders show the applicant was reduced from the rank/grade of SPC/E-4 to private (PV1)/E-1 effective 13 September 2012. k. His DD Form 214 shows he was discharged on 14 September 2012 in the rank/grade of PV1/E-1. He was credited with completion of 5 years, 1 month, and 19 days of net active service this period. His DD Form 214 shows in: (1) block 13 (Decorations, Medals, Badges, Citations and Campaign awarded or authorized): He was awarded or authorized the: * Afghanistan Campaign Medal with Campaign Star * Army Commendation Medal * Army Achievement Medal (2nd Award) * Army Good Conduct Medal * Valorous Unit Award * National Defense Service Medal * Global War on Terrorism Service Medal * Iraq Campaign Medal with Campaign Star * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon (2nd Award) * North Atlantic Treaty Organization Medal * Combat Infantryman Badge (2) block 18 (Remarks) – He was credited with continuous honorable active service from 26 July 2007 until 11 May 2010 (2 years, 9 months, and 16 days). He was credited with completion of his first full term of service. He served in Iraq from 30 January 2008 until 13 November 2008 and in Afghanistan from 28 February 2010 until 26 January 2011. (3) block 24 (Character of Service) - His characterization of service was UOTHC. (4) block 25 (Separation Authority) - The authority for his separation was Army Regulation 635-200, Chapter 10. (5) block 26 (Separation Code) - His Separation Program Designator Code was "KFS." (6) block 27 (Reentry Code) - His Reentry Eligibility (RE) Code was "4." (7) block 28 (Narrative Reason for Separation) - The narrative reason for his separation was "In Lieu of Trial by Court-Martial." (8) block 29 (Dates of Time Lost During This Period) - He lost time due to being in confinement from 7 July 2012 until 12 September 2012 (3 months, and 6 days). l. His record is void of any evidence showing he was diagnosed with any type of mental or medical condition during his period of service. 4. On 23 June 2022, an Army Review Boards Agency staff member sent an email to the applicant asking him to provide medical documents that support his claim of PTSD and other mental health issues. He was advised his case would be placed on hold for 30 days to afford him an opportunity to obtain and forward the documents. To date, the applicant has not responded. 5. 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. 6. 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. 7. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting a discharge upgrade “Because I served my full first Honorable Contract, then re-enlisted.” He states: b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The DD 214 for the period of Service under consideration shows he entered the regular Army on 26 July 2007 and was discharged under other than honorable conditions on 14 September 2012 under the separation authority provided chapter 10 of AR 635-200, Active Duty Enlisted Administrative Separations (17 December 2009): Discharge in Lieu of Trial by Court-Martial. c. In May 2009, the applicant was referred to the Army Substance Abuse Program for two alcohol related incidents – an altercation in a bar and a citation for driving while intoxicated. The provider did not diagnosis the applicant with either a mental health condition or substance abuse disorder at that time but did enroll him in the Army’s Alcohol and other Drug Prevention Training (ADAPT). d. When seen in follow-up on 25 August 2009, “SM {Service Member} reported ‘uncontrollable crying and sleep issues.’ SM also stated he was having suicidal thoughts today and thinks about hurting others.” The provider went on to write: (1) “Deployed one time to Iraq for ten months and returned home November 2008. SM described his deployment as ‘easy.’ SM denied suffering any trauma while deployed. SM denied any hypervigilance or hyperstartle. SM denied experiencing any trouble in a crowd ... (2) SM is currently having suicidal thoughts; last one was today. SM reported that he thinks about hurting someone, however ‘no one in particular.’ SM also has a wish of going AWOL, denied any plans or intents. SM reported ‘cutting himself with a razorblade on both arms from shoulder to elbow to hurt self not intending to kill self at the age of 15.’ SM reported the cutting as an isolated incident. (3) SM reported experiencing financial problems due to excessive spending sprees. SM reported prior marijuana use before joining the military. SM denied using drugs while in the service. SM reported experiencing sleeping problems. SM stated that he has trouble falling asleep and will sleep an average of two hours a night during the week and sleeping 2 to 3 days straight on the weekends. (4) SM stated that he has had trouble sleeping since January and has not sought treatment. SM stated ‘'because I don’t really like to talk to people'’. SM reported that this is the first time he has sought help. SM denied any past or present medications for psychiatric reasons. SM denied any past or present psychiatric diagnosis.” e. No diagnosis was made following this visit but he was diagnosed with adjustment disorder with depressed mood the following week. At a November 2009 appointment, he was reported he was doing well and denied any mental health symptoms. f. In January 2010, he was enrolled in the Army Substance Abuse Program (ASAP) for a urine drug screen positive for tetrahydrocannabinol (THC) and opioids. The applicant opted for outpatient treatment. Further evaluation showed the applicant had been abusing over the counter cold medication for some time: “Seeks the active ingredient dextromethorphan. Has been using at least 1 box per day since age 19. Heaviest use at age 23 when he was using 4-6 boxes per day. Quit to join the Army and immediately deployed so he was sober for 1 year but resumed use after returned from deployment Nov 2008 and has been using at least 1 box per day since.” g. The applicant was treated in both inpatient and outpatient settings. AHLTA encounters show the applicant appears to have improved but then show he was using bath salts and diagnosed with amphetamine dependence in April 2012. h. The applicant underwent a Chapter 14 (Separation for Misconduct) of AR 635-200 Mental Status Evaluation on 31 May 2012. The provider documented a normal examination and went on to opine: (1) “SM completed the PC-PTSD Screener and the score was below the threshold that would indicate PTSD or require further assessment. SM was screened for TBI per the VHA TBI Clinical Reminder and Screening Tool. SM's results were below the threshold indicating TBI. (2) The SM does not require further evaluation by Neuropsychology based on the responses to the screen. The clinical interview did not reveal significant mental health issues. This indicates that the SM does meet medical retention standards of AR 40-501, Chapter 3. Amphetamine Dependence likely. Defer to ASAP for substance use disorder diagnosis.” i. A 7 June 2012 Confinement Order (DD Form 2702) show the applicant was placed in pre-trial confinement for a total of 17 offenses/charges: UCMJ Article Charge(s) 86 - Absence without leave (AWOL) 8 91 - Insubordinate conduct toward warrant officer, non- commissioned officer, or petty officer 2 92 - Failure to obey order or regulation 2 95 - Resistance, flight, breach of arrest, and escape 1 128 - Assault 2 134 - Conduct that is not explicitly listed in the UCMJ 2 j. The applicant’s DD 214 shows the applicant was in pre-trial confined form 7 June 2012 thru 12 September 2012. k. The psychiatrist diagnosed the applicant with adjustment disorder with depressed mood and polysubstance abuse during his confinement. From his final encounter on 16 August 2012: (1) “Case Summary: 27-year-old married male diagnosed with Adjustment Disorder and Poly Substance Abuse. Risk assessment on this date indicated mild risk for self-harm behaviors and no significant risk for harm to others. (2) Treatment plan is for the SM to follow up with the medical providers at confinement to receive a refill of Strattera for his reported ADHD. SM's escort was given MAJ G.'s contact information to provide to the medical providers in case they had questions/concerns about the prescription. SM was not interested in psychotherapy at this time and was under the impression that he was going to see a psychiatrist at today's session.” l. On 12 September 2012, the applicant voluntarily requested a discharge in lieu of trial by court-martial under chapter 10 of AR 635-200. m. The applicant’s request was approved by the Commanding General of I Corps with a reduction in rank to Private (0E1) and an under other than honorable characterization of service. n. There is no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his discharge. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. o. It is the opinion of the ARBA Medical Advisor that a discharge upgrade is not warranted. p. 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 BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board determined relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon the time period the applicant served, and the regulatory guidance related to preparing one DD Form 214 for continuous military service, the Board concluded there was insufficient evidence of an error or injustice warranting the generation of two DD Form 214s. 2. The applicant should note that the first period of honorable military service is annotated in block 18 of the DD Form 214. 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, 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 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 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. 4. The Manual for Courts-Martial, U.S. 1984, Appendix 12 (Maximum Punishment Chart) showed the punishment for violation of Article 86 (AWOL for 30 or more days) included a bad conduct discharge; when the AWOL period was terminated by an apprehension, a dishonorable discharge was authorized. 5. Army Regulation 635-200, in effect at the time, stated when a Soldier was to be discharged under other than honorable conditions, 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). 6. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. Soldiers separated under the provisions of AR 635-200, Chapter 10 receive narrative reason "In Lieu of Trial by Court Martial" and an SPD Code of "KFS." 7. Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers at the time of retirement, discharge, or release from active duty service or control of the Active Army. It established standardized policy for preparing and distributing the DD Form 214. In pertinent part, it states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time or release from active duty retirement or discharge. The specific instructions for the following stated: * Block 24 - characterization or description of service is determined by directives authorizing separation * Block 25 - obtain correct entry from regulatory or directives authorizing the separation * Block 26 - enter the correct SPD representing the reason for separation (see Army Regulation 635-5-1) * Block 27 - enter reentry eligibility code (see Army Regulation 601-210 (Personnel Procurement Qualifications and Procedures for Processing Applicants for Enlistment and Reenlistment in the Regular Army)) * Block 28 - enter the reason for separation as shown in Army Regulation 635-5-1 based on the regulatory or other authority 8. 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 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. 9. 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. 10. 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) AR20220003822 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1