IN THE CASE OF: BOARD DATE: 18 November 2022 DOCKET NUMBER: AR20220006061 APPLICANT REQUESTS: an upgrade of his characterization of service from under other than honorable conditions (UOTHC) to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 21 March 2022 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 2 June 2004 * self-authored statement, 13 March 2022 * two supporting statements, dated 9 March 20022 and 17 March 2022 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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, in effect, he suffered physical and mental abuse as a child which resulted in removal from his home. He grew up in group homes, children's shelters, foster homes, and independent living programs. He wanted a better life and enlisted in the Army. He wishes he could re-do his time in the military, but he accepts responsibility for his actions and realizes there are consequences for actions. Upon leaving the Army, he experienced depression, legal issues, and homelessness. He learned from his mistakes. He worked hard to establish himself and become a better person. He is a loving father to six children, volunteers with special needs children, has a Class A CDL, and works as an agent for Merchant Services. He believes he was dealing with an undiagnosed mental health issue. The lack of a proper psychological evaluation and treatment seriously affected his judgment and performance. 3. The applicant enlisted in the Regular Army on 16 July 2003. 4. Permanent Orders 29-2940, Headquarters, United States Army Infantry Center, Fort Benning, GA, 29 January 2004, awarded him the Parachutist Badge upon the completion of Airborne training. 5. Two DA Forms 4187 (Personnel Action) show the following changes in his duty status: * Present for duty (PDY) to Absent Without Leave (AWOL) - 20 March 2004 * AWOL to Dropped from Rolls (DFR) – 20 April 2004 6. A DD Form 458 (Charge Sheet), dated 21 April 2004, shows he was charged with AWOL from on or about 20 March 2004 and he continued to remain AWOL at the time the Charge Sheet was initiated. 7. He surrendered himself to military authorities on 19 May 2004. 8. A DA Form 4187 shows his duty status changed from DFR to Attached/PDY on 19 May 2004. 9. A DD Form 458 shows court-martial charges were preferred against him on 24 May 2004, for being AWOL from on or about 20 March 2004 to on or about 19 May 2004. 10. He consulted with legal counsel on or about 24 May 2004. a. He 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. b. After receiving legal counsel, he voluntarily requested discharge, in lieu of trial by court-martial, under the provision of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 10. 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 acknowledged making this request free of coercion. He further acknowledged understanding if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veteran's Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his behalf. He did not provide a statement. 11. His immediate commander recommended approval of the request for discharge in lieu of trial by court-martial, with a service characterization of UOTHC, on 26 May 2004. 12. The separation authority approved the recommended discharge on 26 May 2004, directed the applicant be reduced to the lowest enlisted grade, and be issued an UOTHC discharge. 13. Orders 148-16, Headquarters, US Army Personnel Control Facility, US Army Armor Center, Fort Knox, KY, 27 May 2004, shows he was reduced in grade of rank from Private (PVT)/E-2 to PVT/E-1, effective 26 May 2004. 14. His DD Form 214 shows he was discharged on 2 June 2004, in lieu of trial by court- martial, under the provisions of AR 635-200, Chapter 10, in the rank/grade of PVT/E-1, with an UOTHC character of service. His DD 214 does not reflect any personal decorations, but it does show he completed 8 months and 17 days of active service with lost time from 20 March 2004 to 18 May 2004. 15. There is no indication the applicant applied to the Army Discharge Review Board for review of his discharge within that board’s 15-year statute of limitations. 16. The applicant did not provide evidence of a mental health diagnosis, but he did provide two statements of support. a. The applicant's prior foster parent, whom he has known for over 25 years, states the applicant struggled at home resulting in him being fostered. Despite his struggles, he learned from his mistakes. He maintains a job and takes good care of his children. He would be a good candidate for an upgrade. b. A professional colleague states the applicant is a pillar in their organization. He demonstrates integrity, strong work ethic, and consistency. Since his time in foster care and the military, he has become a proud father who makes an honest living. It is remarkable, considering the circumstances he grew up in. He is an ideal candidate for an upgrade. 17. Discharges under the provisions of AR 635-200, Chapter 10 are voluntary requests for discharge for the good of the service, in lieu of a trial by court-martial. An under other than honorable conditions character of service is normally considered appropriate. 18. The Board should consider the applicant's argument and/or evidence in accordance with the published equity, injustice, or clemency determination guidance. ? 19. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his characterization of service from under other than honorable conditions (UOTHC) to under honorable conditions (general). 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) Applicant asserts PTSD and other mental health conditions; specifically, he notes physical and mental abuse as a child resulting in removal from home and living in group homes, shelters, foster homes, and independent living programs. Following his Army service he experienced depression, legal issues, and homelessness. He now believes he was dealing with an undiagnosed mental health issue which impacted his judgment and performance. (2) Applicant enlisted in the RA on 16 July 2003. (3) He was characterized as AWOL on 20 March 2004, changed to DFR on 20 April 2004. He was charged with AWOL from on/about 20 March 2004 and surrendered himself to military authorities on 19 May 2004. (4) His DD214 shows he was discharged on 2 June 2004 under AR 635-200 Chapter 10 (in lieu of trial by court-martial) at the rank of E-1 with an UOTHC character of service. (5) He did not provide evidence of a mental health diagnosis but provided statements of support from a prior foster parent and a professional colleague. c. The military electronic medical record, AHLTA, was reviewed and is void of any encounters or clinical information. d. A review of VA records via JLV suggests he has no service-connected disabilities. A Mental Health Hotline Report dated 12 June 2018 references a past suicide attempt in 6th grade and outlined briefly his history eg “father left him on the streets at 11 years old” and time spent in social service system. Another Hotline Report dated 17 September 2021, notes “past SI with multiple attempts during his time in foster care.” e. The applicant’s discharge-related mental status evaluation was not available for review. f. Supporting documents were reviewed and appreciated. In a personal statement he describes in some detail his pre-enlistment family and developmental history noted above, and that while on leave he returned to NJ where there was a warrant for his arrest; this appears to have contributed to his AWOL status. He also elaborates challenges with mood concerns and homelessness after discharge, as well efforts he has made to improve his own situation and that of his family. A statement from Pastor Kim Rivera dated 9 March 2022 indicates she has known applicant for over 25 years to include time as a foster parent following significant challenges with his family of origin. Also reviewed is a 17 March 2022 statement from Giovanni Baptiste, who describes applicant’s integrity, strong work ethic, and perseverance noting he is “an ideal candidate to obtain an army discharge upgrade.” g. Based on review of supporting documents, the applicant did not provide additional psychiatric or medical records for review. 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 and other mental health conditions associated with a reported pre-enlistment history of abuse and time spent in foster care/social service system. 2. Did the condition exist or experience occur during military service? Yes. The applicant contends that the conditions existed while in active service and contributed to or mitigated the offenses leading to his discharge. 3. Does the condition or experience actually excuse or mitigate the discharge? Partial. The applicant asserts PTSD and other mental health factors, and his assertion alone is sufficient for consideration by the Board. He did not provide any records confirming any psychiatric diagnosis of or treatment for PTSD or other conditions. Given his reported history, it is reasonable to posit the applicant may have suffered from untreated/undiagnosed PTSD or another psychiatric condition based on his reported pre-enlistment social history of abuse. Avoidance behaviors such as AWOL are often seen as part of the natural history and sequelae of PTSD, although the nexus is questionable in his case because it appears his AWOL was associated with an arrest due to an outstanding warrant. PTSD would not mitigate his ability to differentiate between right and wrong and adhere to the right. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, a medical review, and whether to apply clemency. Based upon a preponderance of evidence, his letters of support, and guidance for consideration of discharge upgrade requests, the Board determined that the character of service the applicant received upon separation should be corrected as a matter of clemency. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 2 June 2004 showing his character of service as under honorable conditions (General). 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, United States 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. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides, in pertinent part, 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. b. Paragraph 3-7a provides 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. c. Paragraph 3-7b provides 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 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. 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. 4. 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. 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. 5. 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//