IN THE CASE OF: BOARD DATE: 17 May 2023 DOCKET NUMBER: AR20220010048 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions. Additionally, he requests an appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Attorney Letter * Character Letters (two) * Medical and Service Documents * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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. Through counsel, the applicant states he suffered from diagnosed mental illness and due to this, he has not been able to retain records reflecting his history of mental illness. His DD Form 149, notes post-traumatic stress disorder (PTSD) is related to his request. 3. Counsel states: a. Around the time the applicant enlisted in the Army, the mother of his newborn son attempted to drown his son. As a result of the attempted drowning and near-death experience of his son the applicant requested and was granted a two week leave. He requested an extension of leave to continue to care for the health and well-being of his newborn son. His request for an extension of leave was denied. To continue to care for his newborn son he did not report back to the Army at the conclusion of his two weeks leave. He was arrested and told by the Judge Advocate General Corps that if he accepted a discharge in lieu of trial by court-martial he would be permitted to reenlist in the Army after two years. He was discharged UOTHC and after two years he attempted to reenlist, but his request for reenlistment was denied. b. Character letters from the applicant’s mother and Aunt , dated 26 March 2022, both state the applicant was first diagnosed with mental illness prior to the time that he enlisted in the Army on or around 3 January 1997. He took medication prescribed to him for mental illness prior to his enlistment. Around the time he enlisted he had a newborn son. Due to fear that his mental illness diagnosis could negatively impact his enlistment he did not disclose his mental illness to the Army. Shortly before he enlisted the mother of his newborn son attempted to drown his son. The applicant’s mental illness and mental health conditions went undiagnosed by the Army. The applicant and the mother of his child struggled with and suffered from mental illness. 4. The applicant enlisted in the Regular Army on 3 January 1997 for four years. His military occupational specialty was 51B (Carpentry and Masonry Specialist). 5. The applicant was absent without leave (AWOL) on 1 December 1997 and dropped from the rolls on 30 December 1997. 6. The applicant was apprehended by civilian authorities on 22 March 1998 for a civilian charge of receiving stolen property, he was confined in the County Correctional Facility, , , pending disposition. On 26 March 1998, the charges were dropped, and he was returned to military control on the same date. 7. Court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ) on 31 March 1998. His DD Form 458 (Charge Sheet) shows he was charged with AWOL from on or about 1 December 1997 until on or about 26 March 1998. 8. The applicant’s commander recommended he be tried by special court marital on 31 March 1998. 9. The applicant consulted with legal counsel on 31 March 1998 and 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. a. After consulting with legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), Chapter 10. He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws and he may expect to encounter substantial prejudice in civilian life because of an UOTHC discharge. b. He elected not to submit statements in his own behalf. 10. The applicant’s commander opined that the applicant’s conduct had rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge. Based on the applicant’s previous record, punishment could be expected to have a minimal rehabilitative effect. He believed a discharge at this time would be in the best interest of all concerned. There did not appear to be any reasonable ground to believe that the applicant is, or was, at the time of his misconduct, mentally defective, deranged, or abnormal and recommended discharge UOTHC. 11. The separation authority approved the applicant's request for discharge in lieu of trial by court-martial on 6 August 1998. He directed the applicant's reduction to the lowest enlisted grade with his service characterized as UOTHC. 12. The applicant was discharged on 15 September 1998. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court martial. He completed 1 year, 4 months, and18 days of net active service. He lost time from 1 December 1997 to 25 March 1998. 13. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 14. The applicant provides character reference letters attesting to his mental illness and the circumstances surrounding his discharge. He also provides medical service and treatment documents. 15. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 16. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions. He contends he experienced PTSD that mitigated his misconduct. 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 3 January 1997; 2) The applicant was found AWOL on 1 December 1997. He was apprehended by civilian authorities on 22 March 1998 for a charge of receiving stolen property. The charges were dropped, and he was returned to military control on 31 March 1998; 3) The applicant was discharged on 15 September 1998, Chapter 10, in lieu of trial by court martial. His service was characterized as UOTHC. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and available medical records. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional civilian medical documents were provided. d. The applicant asserts he experienced mental health illness prior to and during his enlistment and while on active service, which mitigates his misconduct. On his application, the applicant specifically noted PTSD was related to his request, as a mitigating factor in the circumstances that resulted in his separation. The applicant reported going on leave because his wife attempted to drown his son, and his command did not extend his leave despite his request. There was no evidence the applicant reported behavioral health symptoms while on active service. A review of JLV provided evidence the applicant the has been diagnosed with chronic adjustment disorder, and he has been awarded service-connected treatment for this condition. 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 partially mitigated his misconduct. Per the Liberal Consideration Policy, his contention that his mental health condition resulted in his misconduct is sufficient for consideration. Kurta Questions 1. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing PTSD which mitigates his misconduct. 2. Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing a mental health condition prior to and while on active service. 3. Does the condition experience actually excuse or mitigate the discharge? Partially, there is evidence the applicant was experiencing a mental health condition prior to his active service. There is insufficient evidence the applicant experienced PTSD while on active service. However, he has been diagnosed with service-connected chronic adjustment disorder by the VA. It is likely the applicant’s prior mental health condition was exasperated by the family stressors he was experiencing while on active service. Avoidant behavior such as going AWOL are often a natural sequela to some mental health conditions. However, the applicant did not return to the military till he was apprehended by civilian authorities for criminal behavior unassociated with his report of PTSD and other mental health conditions. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that 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 medical review, the Board concurred with the advising official finding there is sufficient evidence to support the applicant had condition or experience that partially mitigated his misconduct. Based on the advisory opine, the Board noted the there is evidence the applicant was experiencing a mental health condition prior to his active service. There is insufficient evidence the applicant experienced PTSD while on active service. 2. However, the Board found the applicant has been diagnosed with service-connected chronic adjustment disorder by the VA. As stated by the advisory, it is likely the applicant’s prior mental health condition was exasperated by the family stressors he was experiencing while on active service. The Board agreed, his misconduct did not warrant an upgrade to honorable, but found sufficient evidence to grant partial relief with an upgrade to general under honorable conditions. 2. 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 :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 15 September 1998 to show a characterization of general under honorable conditions. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions. 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, 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. Title 10, U.S. Code, 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 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 begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. 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. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. 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. 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. c. Chapter 10 of that regulation provided, in pertinent part, 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. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 5. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) to carefully consider the revised post-traumatic stress disorder (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. 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. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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) AR20220010048 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1