IN THE CASE OF: BOARD DATE: 15 February 2023 DOCKET NUMBER: AR20220007164 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) 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, in effect, his discharge should be upgraded due to his mental state at the time of his offenses and the fact that he suffers from post-traumatic stress disorder (PTSD). 3. On 7 June 2002, the applicant enlisted in the Regular Army for a period of 4 years. Upon completion of initial entry training, he was assigned to a unit at Fort Bragg, NC. He was promoted the rank/grade of specialist/E-4 effective 7 June 2004. 4. The applicant was reported as absent without leave (AWOL) on 23 February 2005. He returned to military control and was reported as present for duty on 21 March 2005. 5. On 21 March 2005, the applicant was counseled regarding his AWOL and his admission to abusing alcohol and controlled substances. He was ordered to stop this activity immediately and advised he would be provided a means to deal with this problem. 6. On 24 March 2005, the applicant was counseled regarding the loss of certain privileges while he was pending disciplinary action. 7. On 29 March 2005, the applicant's commander was informed the applicant had tested positive for the use of marijuana. His commander was advised to have the applicant report to the Alcohol Substance Abuse Program clinic for screening and assessment to determine the extent of his drug use. 8. The applicant was formally counseled on 7 April 2005 for being disrespectful toward a noncommissioned officer (NCO); and on 12 April 2005 for disobeying a direct order from a commissioned officer, and for: breaking restriction, drinking alcohol, and bringing an unauthorized guest to the barracks. 9. On 15 April 2005, the applicant was ordered to pretrial confinement pending disciplinary action for his multiple offenses. 10. A DD Form 458 (Charge Sheet) shows charges were preferred against the applicant on 18 April 2005 for violations of the Uniform Code of Military Justice (UCMJ) on or about: * 23 February 2005, for absenting himself from his unit, and remaining so absent until on or about 21 March 2005 * 15 April 2005, for failing to go at the time prescribed to his appointed place of duty * 8 April 2005, for willfully disobeying a lawful command from a superior commissioned officer * between 23 February and 21 March 2005, for wrongfully using marijuana 11. On 2 May 2005, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10, in lieu of trial by court-martial. He consulted with legal counsel and was advised of the basis for the 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. He elected not to submit a statement in his own behalf. 12. The applicant's chain of command recommended approval of his request for discharge with a discharge characterization of UOTHC. 13. The separation authority approved the applicant's request for discharge in lieu of trial by court-martial, with his service characterized as UOTHC. He further directed the applicant be reduced to the lowest enlisted pay grade. 14. Orders and the applicant's DD Form 214 confirm he was discharged on 23 May 2005, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of trial by court-martial. He was credited with completing 2 years, 10 months, 21 days of net active service this period with lost time from 23 February 2005 to 20 March 2005. 15. The available record is void of and he did not provide documentation of a behavioral health condition during his period of service. 16. Army Regulation 635-200 states a Chapter 10 discharge is a voluntary discharge request in - lieu of trial by court martial. In doing so, he would have waived his opportunity to appear before a court-martial and risk a felony conviction. A characterization of UOTHC is authorized and normally considered appropriate. 17. 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. 18. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. He contends he had 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 07 June 2002; 2) The applicant was assigned to Fort Bragg, NC after completing IADT and Airborne Training. He was promoted to specialist/E-4 on 7 June 2004; 3) The applicant was AWOL from 23 February-21 March 2005. The applicant admitted to his commander after returning to his unit that he had been abusing alcohol and an illegal substance. The applicant tested positive for marijuana on 29 March 2005; 4) The applicant was formally counseled on 7 April 2005 for being disrespectful toward an NCO and again on 12 April 2005 for disobeying a direct order from a commissioned officer, breaking restriction, drinking alcohol, and bringing an unauthorized guest to the barracks; 5) On 15 April 2005, the applicant was ordered to pretrial confinement; 6) On 23 May 2005, he was discharged, Chapter 10, for the good of the service-in lieu of trial by court-martial with an UOTHC. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. Th VA’s Joint Legacy Viewer (JLV) was also evaluated. d. The applicant asserts he was experiencing PTSD, which mitigated his misconduct. The applicant’s DD214 appears to be lacking significant information concerning his military career, which likely negatively impacted the applicant’s ability to receive medical care after he was discharged. There is clear evidence the applicant was deployed to an active combat zone. The applicant was awarded the Combat Infantry Badge on 01 April 2003 as a result of his engagement in active ground combat, while he was deployed to Afghanistan. However, there is no indication of this deployment on the applicant’s DD214. While on active service, the applicant admitted to abusing alcohol and marijuana when he was AWOL. The applicant was counseled by command that he should receive behavioral health and substance abuse counseling to assist him. However, the applicant was placed in confinement and administrative discharge proceedings were initiated less than one month after he returned from being AWOL. The applicant has received assistance from the VA for homelessness and suicidal ideation. He has also been diagnosed with an opioid addiction. The applicant receives no service connect disability. 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 condition or experience that 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 symptoms of PTSD that contributed to his misconduct. B. Did the condition exist or experience occur during military service? Yes, the applicant contends his symptoms of PTSD occurred while on active service. C. Does the condition or experience actually excuse or mitigate the discharge? Yes, there is sufficient evidence the applicant was exposed to potentially traumatic events during his deployment to Afghanistan in 2003. The applicant reports experiencing PTSD, and there is a high likelihood he experienced barriers to receiving behavioral health and substance abuse treatment both while on active service and after discharge. There is a nexus between PTSD and the applicant’s increased irritability, disrespectful behavior toward an NCO and failure to follow orders. In addition, it is likely the applicant’s drug and alcohol use was also an attempt to self-medicate or to avoid his negative emotional state. Avoidant behaviors to include going AWOL are also often a natural sequalae to PTSD. Lastly, it is strongly recommended, the accuracy of the applicant’s DD214 be evaluated due to discrepancies found in the review of this applicant’s medical and service record. It is also recommended the applicant’s discharge be upgraded to honorable with a SPD code of JKN. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was 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. Upon review of the applicant’s petition, available military records and the medical review, the Board concurred with the advisory official who found sufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The Board found the applicant’s discharge harsh, and that relief was warranted based upon guidance for consideration of discharge upgrade requests. Based on this, the Board granted relief. 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 the applicant’s DD Form 214 for the period ending 23 May 2005 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, 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. Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an UOTHC discharge. b. 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. 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. d. When a Soldier is to be discharged UOTHC, the separation authority would direct an immediate reduction to the lowest enlisted grade. 4. 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. 5. 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. 6. 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) AR20220007164 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1