IN THE CASE OF: BOARD DATE: 1 February 2023 DOCKET NUMBER: AR20220008280 APPLICANT REQUESTS: * Reconsideration of his previous request to change his character of service from under other than honorable conditions to honorable * Personal appearance before the Board via telephone APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 22 September 2020 and 8 May 2022 * Self-authored letter, undated * East Conyers Behavioral Health Clinic letter, 16 April 2021 * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20210006052 on 17 August 2021. 2. The applicant states: a. He was in Operation Just Cause, in Panama. He knew what he signed up for. He was happy to serve his country and still would be serving today. He was a proud Soldier, but something happened to him after the war. He felt different, depressed, guilty, anxious, and suicidal and still does after all these years. He is tired of suffering and so is his family. b. After the war, the only way he felt safe was when he was running to something that felt familiar. It seemed like everyone celebrated because they won the war, but no one asked if he was okay. After all these years, this is taking a toll on his mental state and his family. He is requesting his discharge be upgraded so he can get benefits entitled to him to seek further mental health evaluation. He was a good Soldier and served his country well. His country and leadership failed him. He was a proud Soldier, but something happened to him after the war. He was shown the door, after the war, and left to fend for himself. It would take a war hero to understand his pain. 3. On 17 November 1987, the applicant enlisted in the U.S. Army. He completed training and was awarded the military occupational specialty 11B (Infantryman). 4. He served in Panama from 20 December 1989 to 31 January 1990. 5. The applicant's duty status changed on: * 15 August 1990, from present for duty (PDY) to absent without leave (AWOL) * 14 September 1990, from AWOL to dropped from rolls (DFR) as a deserter * 16 November 1990, from DFR to attached/return to military control 6. On 26 November 1990, and after consulting with counsel, the applicant requested discharge under the provisions of chapter 10, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an Under Other Than Honorable Conditions Discharge if this request is approved, and of the procedures and rights available to him. Following this consultation, he requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request, he acknowledged: * He understood that submitting this request for discharge he acknowledge that he is guilty of the charges against him or of a lesser included offenses therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge * He has been advised and understand the possible effects of an under other than honorable discharge * As a result of the issuance of such a discharge he will be deprived of many or all Army benefits that he may be ineligible for many, or all benefits administered by the Veterans Administration and he may be deprived of rights and benefits as a veteran under both state and federal law * He understood that he may, up until the date the discharge authority approves his discharge, withdraw his acceptance of this discharge 7. On 19 December 1990, the separation authority approved the applicant's request and directed his discharge under other than honorable conditions; he also ordered the applicant's reduction to private/E-1. 8. On 10 January 1991, the applicant was discharged from active duty. His DD Form 214 shows he was discharged UP of AR 635-200, chapter 10, for the good of the service in lieu of court-martial, with the issuance of an under other than honorable certificate (Separation Code KFS, Reentry Code 3). He completed 2 years, 10 month and 23 days of active service. His DD Form 214 also shows he had lost time from 15 August 1990 to 16 November 1990. He was awarded or authorized: * Army Service Ribbon * Combat Infantryman Badge * Army Achievement Medal (2nd Award) * Sharpshooter Marksmanship Qualification Badge with Rifle Bar, M-16 * Expert Marksmanship Qualification Badge with Grenade Bar 9. The applicant provides a letter, issued by East Conyers Behavioral Health Clinic, 16 April 2021, which shows in part, applicant has no known psychiatry history, he reported ongoing symptoms of nightmares, vivid dreams, irritability, anger outburst at times, easily getting angry, depressed mood. Applicant stated he was involved in the Panama War (Operation Just Cause) in 1989, he stated that he was involved in transporting dead bodies and active in the frontline. Now he is having increasing vivid dreams of dead people, seeing the eyes of the dead people, waking him up from sleep, difficult to fall back asleep. He also noticed increasing low frustration tolerance, anger outburst at time, daytime fatigue, flashback of the dead people. He reports increasing sensitivity to noise and gun shots. He reports that he drinks several bottles of beer every night to go to sleep. He denies any other substance use. Applicant is currently working for delivery company and finding it difficult to do his job due to lack of sleep. 10. On 17 August 2021, in ABCMR Docket Number AR20210006052, the Board denied his request for an upgrade of his discharge. a. Based on the available information and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency psychologist that the applicant has mitigating Behavioral Health conditions, trauma related symptoms and depressive symptoms. As there is an association between trauma related symptoms/depressive symptoms and avoidant behavior, there is a nexus between applicant’s symptoms and his AWOL episode. Chronological review of his military career indicates a dramatic change in the applicant’s motivation, temperament and level of instability occurred during and following his deployment to Panama. A discharge upgrade was recommended. b. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the lack of evidence showing a post-traumatic stress disorder (PTSD) diagnosis, medical records, and the review and conclusions of the advising official. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based upon a preponderance of the evidence, and notwithstanding the recommendation made by the advising official, the Board determined that the character of service the applicant received upon separation was not in error or unjust. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 11. By regulation (AR 635-200), a member who has committed an offense 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. 12. 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. 13. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting reconsideration of prior request to change character of service from under other than honorable conditions to honorable and a personal appearance before the Board. 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) Current ROP incorporates previous records summarized in Docket Number AR20210006052 on 17 August 2021. (2) Applicant served in Operation Just Cause (Panama). He asserts something happened to him after the war, he felt different, depressed, guilty, anxious, and suicidal and still does after all these years. He is seeking upgrade so he can get benefits and seek further mental health evaluation. (3) He enlisted in the RA on 17 November 1987 and was awarded MOS 11B. He served in Panama 20 December 1989 to 31 January 1990. (4) On 15 August 1990 duty status was changed to AWOL; on 14 September 1990 he was DFR, and on 16 November 1990 he was returned to military control. (5) He was discharged on 10 January 1991 under AR 635-200 Chapter 10, in lieu of trial by court-martial, UOTHC. (6) On 17 August 2021 the Board denied request for upgrade although at this time the Agency psychologist opined that that applicant had mitigating BH conditions, trauma related symptoms, and depressive symptoms and noted a dramatic change in motivation, temperament, and level of instability during and following applicant’s deployment to Panama. A discharge upgrade was recommended. c. Supporting Documents All available supporting documents reviewed to include available service records and prior ABCMR proceedings. Per his DD Form 149 applicant asserts PTSD as an issue/condition related to his request. Medical report from East Conyers Behavioral Health Clinic dated 16 April 2021 indicates “ongoing symptoms of nightmares, vivid dreams, irritability, anger outbursts at times, easily getting angry, depressed mood.” Applicant elaborated participation in Operation Just Cause, stated he was “involved in transporting dead bodies and active in the frontline,” and described numerous re- experiencing symptoms associated with his experiences. He also described low frustration tolerance, daytime fatigue, sensitivity to noise, and the use of alcohol to help with sleep. The evaluation indicated no prior psychiatric treatment. He was diagnosed with Post-Traumatic Stress Disorder and started on Prazosin, a medication often used to treat post-traumatic nightmares. Evaluating provider was M.D. (presumably psychiatrist given the nature of the practice but not specified). No other medical/psychiatric records were provided for review in the supporting documents. d. AHLTA The Army electronic medical record, AHLTA, was not reviewed; it was not an existing EMR at the applicant’s time of service. e. JLV Available VA records were reviewed via JLV. Records do not indicate any service- connected conditions and are generally void of clinical data. f. Other Query of HAIMS did not return any documents for this applicant. No hard copy in- service medical records were available 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 associated with the circumstances of his discharge, and he has been diagnosed with PTSD secondary to experiences in Panama by a civilian/non-VA physician. 2. Did the condition exist or experience occur during military service? Yes. The applicant’s assertion is supported by his subsequent diagnosis of PTSD. 3. Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant asserts mitigation due to PTSD at the time of his offense/discharge. Per liberal consideration guidelines, his assertion alone is worthy of consideration by the Board. He has been diagnosed with PTSD secondary to his experiences in Panama; AWOL associated with his discharge occurred after his service in Panama and the reported experience of combat-related trauma. Based on the available information, the BH advisor agrees with the relevant aspects of the prior medical advisory; given that AWOL is an avoidance behavior associated with the natural history and sequelae of trauma-exposure/PTSD, there is a nexus between his symptoms/experiences and the AWOL leading to his discharge. Mitigation is supported. 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 the medical review, the Board considered the advising official finding that AWOL is an avoidance behavior associated with the natural history and sequelae of trauma-exposure/PTSD, there is a nexus between his symptoms/experiences and the AWOL leading to his discharge. Mitigation is supported. 2. However, the Board notwithstanding the advising official found there was insufficient evidence of in-service mitigating factor for the misconduct to weigh a clemency determination. The Board noted, the applicant provided no post service accomplishments or letters of support to attest to his honorable conduct that might have weighed 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 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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. Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor. An honorable characterization was appropriate when the quality of the Soldier's service had generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would clearly be inappropriate. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges were preferred. The request had to include the Soldier's admission of guilt. 2. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. Paragraph 6-11 (Approved for Discharge from Service under Other Than Honorable Conditions) stated commanders could reduce Soldiers discharged under other than honorable conditions to the lowest enlisted grade. 3. The Maximum Punishment Chart in the Manual for Courts-Martial, in effect at the time, showed the punishment for AWOL over 30 days was a bad conduct discharge; if terminated by an apprehension, the Soldier could also receive a dishonorable discharge. 4. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 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. 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 (TBI); 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. 6. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220008280 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1