IN THE CASE OF: BOARD DATE: 15 December 2022 DOCKET NUMBER: AR20220005800 APPLICANT REQUESTS: upgrade of his character of service from under other than honorable conditions. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Personal Statements * Medical Document FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he had post-traumatic stress disorder (PTSD) at the time of his incident that led to his discharge. He asks the Board for clemency and asserts that he was never offered any counseling. In a separate statement, he adds: * If he were given PTSD counseling, he probably would not have made the poor decisions that he made * he is currently seeing a metal health therapist for PTSD and depression and has been diagnosed as having it due in part to his experiences while serving in Desert Shield/Storm * he and his family need help; he does not want his family to relive painful memories of going through his PTSD symptoms 3. He provides a statement from a staff member of a community health center who states the applicant has a diagnosis of PTSD. He has been receiving behavioral health services since 21 May 2022 and attends therapy sessions regularly. 4. Review of the applicant’s service records shows: a. He enlisted in the Regular Army (RA) on 1 May 1985. He held military occupational specialty 63B (Light Wheel Vehicle Mechanic). He was promoted to sergeant/E-5 in September 1989. b. He reenlisted in the RA on 12 December 1989. He served in Germany from 28 April 1987 to 23 April 1990 and Southwest Asia from 24 October 1990 to 27 April 1991. c. On 5 February 1992, court-martial charges were preferred against him. His DD Form 458 (Charge Sheet) shows he was charged with * one specification of wrongfully attempting to sell captured or abandoned property (2 AK-47 machineguns) * one specification of wrongfully carrying a loaded privately owned weapon (pistol) in a vehicle on Fort Lewis, WA * one specification of wrongfully failing to register a weapon within the authorized timeframe * one specification of failing to give notice and turn over to proper authorities captured/abandoned property which had come into his possession (2 AK-47 machine guns) d. On 30 April 1992, the applicant consulted with legal counsel. He was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), chapter 10, for the good of the service - in lieu of trial by court-martial. In his request for discharge, he indicated that: * he was making this request of his own free will and had not been subjected to any coercion by any person * he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge * he acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law * he stated under no circumstances did he desire further rehabilitation for he have no desire to perform further military service and elected not to submit a statement in his own behalf e. His chain of command recommended approval with the issuance of an under other than honorable conditions discharge. f. On 12 May 1992, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and directed that he be reduced to private/E-1 and issued an under other than honorable conditions discharge. The applicant was accordingly discharged on 21 May 1992. g. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with chapter 10 (in lieu of trial by court- martial) of AR 635-200 with an under other than honorable conditions characterization of service. He completed 7 years and 21 days of active service. His DD Form 214 further shows: (1) He was awarded or authorized Army Service Ribbon, National Defense Service Medal, Army Achievement Medal (1st Oak Leaf Cluster), Army Good Conduct Medal (2nd Award), Mechanic Badge, Driver Badge, Overseas Service Ribbon, Southwest Asia Service Medal with 2 service stars, and Kuwait Liberation Medal. (2) The Remarks Block listed his reenlistment and his “Continuous Honorable Service 85-05-01 to 89-12-11” h. There is no indication he petitioned the Army Discharge Review Board for review of his discharge within that boards 15 year statute of limitations. 5. By regulation (AR 635-200), a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. A discharge under other than honorable conditions is normally considered appropriate. 6. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 7. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) discharge. He contends he had a mental health condition that mitigated his misconduct, PTSD. 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) The applicant enlisted in the Regular Army on 01 May 1985; 2) The applicant was deployed to Desert Shield/Storm from 24 October 1990-27 April 1991; 3) On 5 February 1992, court-martial charges were preferred against him for attempting sell two AK-47s, wrongfully carrying a loaded privately owned weapon on post, one specification of not registering a weapon, and failing to turn over the 2 AK-47s after acquiring them; 4) The applicant was discharged on 21 May 1992 with a Chapter 10 (in lieu of trial by court- martial) with an UOTHC characterization of service. c. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) and civilian treatment records were reviewed. d. The applicant asserts he was experiencing PTSD while on active service due to his deployment. There were no active service medical records to review. A review of JLV provided evidence the applicant is receiving 100% service-connected disability for PTSD, which he was awarded 22 November 2021. The applicant did provide medical documentation from a behavioral health provider. The documentation stated the applicant has been diagnosed with PTSD and has been engaged in behavioral health treatment since 21 May 2022. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence to support the applicant had a condition or experience that partially mitigated his misconduct. Kurta Questions A. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing PTSD, and he has been diagnosed by a civilian provider with PTSD. B. Did the condition exist or experience occur during military service? Yes, the applicant contends his PTSD occurred while on active service in relation to his deployment to Desert Storm. The applicant also receives 100% service- connected disability for PTSD. C. Does the condition or experience actually excuse or mitigate the discharge? No, there is no nexus between PTSD and not properly registering a privately owned pistol, carrying a loaded pistol on post, and not turning over and attempting to sell two AK-47s. This is not a normal sequel to PTSD given that: 1) these behaviors are not part of the natural history or sequelae of PTSD; 2) PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service to include deployment, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA Medical Advisor. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. 2. A majority of the Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by PTSD. Based on a preponderance of evidence, a majority of the Board determined the character of service the applicant received upon separation was not in error or unjust. 3. The member in the minority found the applicant’s misconduct was not of a nature that warranted the character of service he received. The member in the minority determined the applicant’s character of service should be changed to under honorable conditions (general). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :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, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. a. Paragraph 3-7a states that 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. Paragraph 3-7b states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 4. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria, and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 6. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220005800 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1