IN THE CASE OF: BOARD DATE: 14 June 2023 DOCKET NUMBER: AR20220007625 APPLICANT’S REQUEST: reconsideration of his earlier request to upgrade his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Request for Reconsideration * Letter of Support * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. Incorporated herein by reference are military records, as were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20170014734, on 24 June 2020. 2. The applicant states his request is based on new evidence that was previously omitted, and a new argument that the Board did not consider. Additionally, because his complete service treatment records were not available, the Board was unable appropriately address his mental health issues and what he believes were early signs of post-traumatic stress disorder (PTSD). He argues, "My mental health, stress, and dilemma surely impacted my decisions at an early age." Further, "My argument is (that) my family presented a dilemma that I was not prepared to correctly deal with at that stage of my life." Since his separation, he has lived an honorable life. 3. The applicant provides a letter from Major General (Retired) (MG (R)) . a. MG (R) acknowledges the applicant made a bad choice by going absent without leave (AWOL) for 36 days; however, the applicant has been paying on a lifelong sentence, which continues to follow him to present day. The applicant faced difficult situations and, after trying to use his chain of command, did what he thought was best for his family. b. MG (R) affirms his view that the applicant's character, integrity, talent, intellect, and work-ethic are above reproach. The applicant is the consummate professional who embodies, lives, and breathes Army values, despite not being in uniform. The applicant's moral compass and trustworthiness are unquestioned, and the applicant's list of accomplishments within the community speak well of his character. c. MG (R) declares he is proud to have the applicant as one of his service providers; the applicant is always on time and does quality work; he lives a model life, and he now makes good choices. Since meeting the applicant years ago, the applicant has shown himself to be a trustworthy professional. Additionally, the applicant has spent countless hours supporting youth sports and other activities within the community. d. MG (R) argues that it is important to support upgrade requests like the applicant's because it demonstrates that you can overcome mistakes made decades earlier. The applicant deserves the upgrade; "he has evolved as a person and citizen!" 4. A review of the applicant's service record reveals the following: a. On 11 July 1996, the applicant enlisted into the Regular Army for 3 years. Upon completion of initial entry training (IET) and the award of military occupational specialty 77F (Petroleum Supply Specialist), orders assigned him to an aviation battalion in Germany, and he arrived at his new unit, on or about 11 December 1996. b. On 16 July 1997, the applicant's unit placed him on ordinary leave with a return date of 25 July 1997. Upon the applicant's arrival in the continental United States (CONUS), he signed in at Fort Rucker, AL and attempted to obtain a compassionate reassignment; the applicant's unit extended his leave to 1 August 1997. c. On 3 August 1997, the applicant's unit reported him as AWOL and, on 2 September 1997, dropped him from unit rolls. d. On 8 September 1997, the applicant surrendered himself to military authority at Fort Rucker, and the authority immediately transferred him to the U.S. Army Personnel Control Facility (PCF), located at Fort Knox, KY. e. On 11 September 1997, the PCF preferred court-martial charges against the applicant for being AWOL, from 3 August until 8 September 1997 (36 days); the absence violated Uniform Code of Military Justice (UCMJ) Article 86 (AWOL for More than 30 days). f. On 11 September 1997, after consulting with counsel, the applicant voluntarily, and in writing, 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 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, and he elected not to submit statements in his own behalf. Following the submission of his request, the PCF placed the applicant on excess leave, and he departed Fort Knox. g. On 26 June 1998, the separation authority approved the applicant's request and directed his under other than honorable conditions discharge; he also ordered the applicant's rank reduction to the lowest enlisted grade. On 26 August 1998, orders discharged the applicant accordingly. h. His DD Form 214 shows he was discharged under the provisions of chapter 10 of AR 635-200 with an under other than honorable conditions characterization of service, with Separation Code KFS, Reentry Code 3. He completed 2 years and 10 days of his 3-year enlistment contract, with lost time from 19970803 through 19970907. Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) lists the Army Service Ribbon and a marksmanship qualification badge. i. On 17 June 2002, the applicant petitioned the Army Discharge Review Board (ADRB) requesting an upgraded character of service. (1) The applicant stated that, while assigned in Germany, he had deployed to Bosnia when he learned his mother had died. Prior to her death, he had tried to take leave to see her, but his unit refused his request; the unit's actions made it hard for the applicant to focus on his military mission, and he later went AWOL. He eventually came to his senses and turned himself in after a 36-day absence. (2) On 9 August 2002, the Army Review Boards Agency (ARBA) administratively closed the applicant's request, noting the applicant's service record had been loaned to another agency and their unavailability made it impossible for the ADRB to make a fair and equitable determination. j. On 8 April 2017, the applicant applied to the ABCMR, requesting an upgrade. (1) The applicant described his background and assignment to Germany after IET; shortly after his arrival, he sought to bring his young wife and son to Germany, and, around this same time, his mother became sick. (a) His unit was preparing to deploy to Bosnia, and, about a week before deployment, he asked for leave to see his mother; his command, however, denied his request. Around the 1st of April, the Red Cross notified him of his mother's death, and "it was the most heartache I've ever felt"; he also learned his wife was pregnant with their second child. The unit granted him 2-weeks' leave, and after he returned, he felt depressed, and he even occasionally contemplated suicide. The applicant went to see the chaplain several times for counseling, but no one seemed interested in his concerns (b) In July, the applicant's wife gave birth to their second child, and the unit placed the applicant on only 1-week's leave. On arrival in CONUS, he realized he needed more time with his wife and family, so he reached out to his first sergeant and captain to ask for an extension, but they would not approve the additional leave, so the applicant took it upon himself to stay longer. When he tried to return to his unit, they said he should report to the closest military base, so he went to Fort Rucker; a week later, they out-processed him from the Army at Fort Knox. (2) On 24 June 2020, the Board evaluated the applicant's arguments and his service record and unanimously voted to deny the applicant's request. (a) At some point prior to the Board's convening, the ARBA Medical Advisor submitted a medical review. Based upon an assessment of the applicant's Armed Forces Health Longitudinal Technology Application (AHLTA), and the Department of Veterans Affairs (VA) Joint Legacy Viewer (JLV) medical records, the medical advisor opined the documentation was insufficient to conclude the applicant failed medical retention standards while on active duty. The advisor continued, the applicant had completed enlistment paperwork in 2006, and, in a 2009 evaluation for a medical discharge, the applicant denied behavioral health symptoms, conditions, or treatment. (The database maintained by the National Personnel Records Center (NPRC) shows no other military service records pertaining to the applicant that date from outside his Regular Army service, 1996 through 1998; the JLV may include documentation not currently available from NPRC). (b) The Board stated, based on the applicant's short term of honorable service, completed prior to a lengthy AWOL (the applicant's AWOL was 36 days), and in consideration of the medical advisor's findings and recommendations, the Board concluded the evidence was insufficient to warrant relief. 5. The applicant request reconsideration of his request for an upgraded character of service. a. During the applicant's era of service, Soldiers charged with UCMJ violations, for which a punitive discharge was an authorized maximum punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and available in-lieu of trial by court-martial. b. The Manual for Courts-Martial, then in effect, showed punitive discharges were among the available maximum punishments for violations of Article 86 (AWOL for More than 30 Days). 6. 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. 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: a. Background: The applicant is requesting reconsideration of his earlier request to upgrade his under other than honorable conditions discharge. The applicant contends that his mental health and stress were mitigating factor in his discharge. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * Applicant enlisted in the RA on 11 July 1996. * On 11 September 1997 court-martial charges were preferred against him for being AWOL 3 August to 8 September 1997. * The applicant requested discharge under AR 635-200, Chapter 10, in lieu of trial by court martial. The request was accepted and approved. * The applicant was discharged on 26 August 1998 under AR 635-200, Chapter 10, with an UOTHC characterization of service. b. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s request for reconsideration, his previous Army Discharge Review Board packet to include his original DD Form 293, his ABCMR Record of Proceedings (ROP), letter of support, DD Form 214, as well as documents from his service record and separation. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV) and AHLTA, though no data was available. Lack of citation or discussion in this section should not be interpreted as lack of consideration. c. In his request for reconsideration letter, the applicant asserts that his mental health and what he believes were early signs of PTSD were a mitigating factor in his discharge. Per review of all records, while on deployment the applicant’s mother was dying, and he was denied the opportunity to return to see her. He was notified of her death while in Bosnia (1 April 1997). After the birth of his second child, he was granted one week of leave to return stateside (from Germany) to visit them. It appears he asked for a compassionate reassignment, but it was denied. He reports he asked for more leave, and it was denied, though his records indicate he did get at least some additional time. He reported at this time he was “lost,” and his mind was “all over the place.” This is when the applicant went AWOL for 36 days. Per a self-authored statement from his first application, he indicates having reached out for assistance with the Chaplain on multiple occasions prior to going AWOL. A letter of support indicates he may experience trauma symptoms secondary to an injury while in the service, though this advisor found no other evidence of what this was referencing. There is no evidence that the applicant was ever diagnosed with a mental health condition, nor engaged in mental health care, while he was in the Army, nor since he was discharged. Though, given lack of electronic health records at the time of his service, it is not uncommon for there to be no record of treatment or formal support. And chaplain care would not include records for review. d. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is minimal evidence, outside of self-report, to support the applicant may have had a condition or experience at the time of service that mitigated his discharge. However, per Liberal Consideration guidance, his contention is sufficient to warrant the Board’s consideration. 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 contends PTSD and other stressors as a mitigating factor. 2. Did the condition exist, or experience occur during military service? Yes, the mitigating condition was during his time in service. 3. Does the condition or experience actually excuse or mitigate the discharge? Partial. There is no medical documentation from his time in service to support PTSD nor any other mental health condition. However, per Liberal Consideration his contention is sufficient to warrant the board’s consideration. The applicant asserts he was experiencing mental health symptoms, he sought support from a chaplain, and there is a letter from a reference stating he also believes the applicant was experiencing symptoms of PTSD secondary to an injury. In addition, he was experiencing significant psychosocial stressors and likely significant grief/loss. Going AWOL is an avoidant behavior consistent with the history and sequalae of certain mental health conditions, to include depression, anxiety and PTSD. Though going AWOL is not sufficient to establish history of a condition during active service. e. In accordance with the Memo (2018), I recommend considering clemency given the circumstances surrounding his misconduct, that he turned himself in, and that his UOTHC discharge for 36 days AWOL appears inconsistent with the severity of his misconduct and unduly harsh when compared to today’s standards. BOARD DISCUSSION: 1. 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. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding there is minimal evidence, outside of self- report, to support the applicant may have had a condition or experience at the time of service that mitigated his discharge. The Board considered the advising official recommendation based on liberal consideration that given the circumstances surrounding his misconduct, that he turned himself in, and that his UOTHC discharge for 36 days AWOL appears inconsistent with the severity of his misconduct and unduly harsh when compared to today’s standards. 2. The Board considered the character letter of support provided by the applicant that attested to his honorable conduct and his involvement within his community. The Board applauds how he has turned his life around since his discharge. However, the Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to an honorable discharge. Therefore, the Board denied relief. ? 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 Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR20170014734, on 24 June 2020. 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. Title 10, USC, 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. Title 10, United State Code, section 1556 (Ex Parte Communications Prohibited) 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. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. It provides: a. Paragraph 3-7a (Honorable Discharge). 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. Paragraph 3-7b (General Discharge). 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 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 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. 4. The Manual for Courts-Martial, United States, in effect at the time, showed UCMJ Article 86 (AWOL for more than 30 days) included punitive discharges among its maximum punishments. 5. 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. 6. 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. 7. 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) AR20220007625 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1