IN THE CASE OF: BOARD DATE: 7 June 2023 DOCKET NUMBER: AR20220010174 APPLICANT REQUESTS: reconsideration of his previous request to change his character of service from under other than honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 10 August 2022 * character reference letter, 9 August 2022 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 AR20150012909 on 4 August 2016. 2. The applicant provides new argument or evidence not previously considered by the Board. 3. The applicant states, he would like to change his character of service for benefits and job opportunities. His Post-Traumatic Stress Disorder (PTSD) is related to his request. 4. On 23 May 1980, the applicant enlisted in the Regular Army. He completed training and was awarded military occupational specialty (MOS) 11B, Infantryman. 5. On 27 May 1981, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being absent from his place of duty on or about 11 May 1981 until on or about 12 May 1981. His punishment consisted of 14 days of extra duty, 14 days restriction (suspended until 27 August 1981), forfeiture of $116.00 pay and reduction to pay grade E-1 (suspended until 27 August 1981). 6. A DD Form 458 (Charge Sheet), dated 21 December 1983, which shows, in part on or about 19 June 1981, applicant without authority absent himself from his unit and did remain so absent until 19 December 1983. 7. On 21 December 1983, the applicant consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial, 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, the applicant requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request, he acknowledged: a. 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. b. He had 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. c. He also understood that he may, up until the date the discharge authority approves his discharge, withdraw his acceptance of this discharge. 8. On 6 January 1984, the immediate and intermediate commanders recommended approval of the applicant's request for discharge and the issuance of an Other Than Honorable Conditions Discharge Certificate. 9. On 12 January 1984, consistent with the chain of command recommendations, the separation authority approved the applicant's elimination from the service under the provisions of AR 635-200, Chapter 10 and ordered the issuance of an Other Than Honorable Conditions Discharge Certificate and the applicant's reduction to private/E-1. 10. The applicant was discharged from active duty on 1 February 1984 under the provisions 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. His DD Form 214 shows he completed 1 year, 2 months, and 9 days of active service with lost time from 18 June 1981 to 19 December 1983. Additionally, he was awarded or authorized the Army Service Ribbon. His separation code is KFS, and Reenlistment Code RE-3. 11. On 13 August 2008, the applicant was issued a DD Form 215 (Correction to DD Form 214) which made the correction; shows in item number 19, ADD: Block 6, period of delayed entry program 19800516-19800522. 12. On 4 August 2016, in ABCMR Docket Number AR20150012909, the Board denied his request for an upgrade of his discharge. 13. The applicant provides a character reference issued by The Salvation Army, Director of Business Operations, , 9 August 2022, which shows in part, he has known the applicant for several months, and that the applicant has skills and determination to be a continued success in the community. 14. 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. 15. 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. 16. MEDICAL REVIEW: a. The applicant requests reconsideration of his previous request for an upgrade of his under other than honorable conditions (UOTHC) discharge. He contends his misconduct was related to 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 23 May 1980; 2) On 27 May 1981, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being absent from his place of duty on or about 11 May 1981 until on or about 12 May 1981; 3) Charges were preferred against the applicant on 21 December 1983, for being AWOL from on or about 19 June 1981 until 19 December 1983; 4) On 21 December 1983, the applicant consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial. Following this consultation, the applicant requested discharge under the provision of AR 635-200, Chapter 10, in lieu of trial by court-martial; 5) On 6 January 1984, the immediate and intermediate commanders recommended approval of the applicant's request for discharge and the issuance of an Other Than Honorable Conditions Discharge Certificate; 6) The applicant was discharged from active duty on 1 February 1984 under the provisions of AR 635- 200, Chapter 10. c. The VA electronic medical record, JLV, ROP, and case files were reviewed. The military electronic medical record, AHLTA, was not reviewed as it was not in use during the applicant’s time in service. No military BH-related records were provided for review. A review of JLV showed the applicant received BH-related treatment at a VA facility; he is not service-connected for a disability. Records showed the applicant first engaged for BH-related care at the New Jersey VA on 1 August 2012, whereby he presented to the ED with complaints of depression, insomnia, and flashbacks related to his military experience. The applicant denied combat exposure but reported being involved in three explosions. According to the applicant, during exposure to the last explosion he felt as if his head “blew up”. He reportedly blacked out, and afterward lost motivation for moving forward in the military, became an angrier person, began acting impulsively, and reportedly went AWOL to avoid further physical altercations with his sergeant. According to the applicant, he routinely has nightmares related to the explosion and over the past four months noticed an increased feeling of wanting to harm someone. He reported that prior to reporting to the ED, he punched a hole in the wall during an argument with his girlfriend. The applicant also noted a history of alcohol use to “calm down”. He was diagnosed with PTSD with depressed mood, and Alcohol Abuse, and was voluntarily psychiatrically hospitalized from 1 August to 3 August 2012 for safety and stabilization. Upon discharge it was recommended the applicant enrolled in substance treatment program and seek outpatient care for PTSD. d. Encounter note dated 28 August 2013 showed the applicant was found appropriate for the substance abuse treatment program (SATP), with a diagnosis of Alcohol Use Disorder, and entered the residential treatment program (RTP) on 31 October 2013. Upon intake the applicant reported a history of heavy alcohol use since 1987, and reported having undergone detoxification on approximately 7 occasions, with the most recent being a three-day detoxification that ended the day before the current encounter. The applicant was also noted to have a history of PTSD related to an explosion experienced while on active duty that caused him to black out. After the explosion the applicant reportedly lost motivation for the military and noticed increased anger and impulsiveness which caused him to get into physical altercations with his sergeant. He reported going AWOL and being subsequently administratively separated. The applicant was discharged from the RTP the following day due to not meeting eligibility requirement except for humanitarian emergency, due to his UOTHC discharge characterization. e. Encounter note dated 25 June 2014 showed the applicant, again, underwent an assessment for substance use treatment. It was recommended the applicant enter the residential treatment program, however, upon escorting the applicant to meet the RTP staff, the provider was informed of the applicant’s ineligibility. Encounter noted dated 21 January 2015 showed the applicant presented to the ED with complaints of depression, suicidal ideation, and concerns of drinking too much. The applicant reported having gotten into arguments with his wife and younger brother, subsequently walking into the police station asking for help, and was transported to the ED. The applicant reported a previous history of suicidal attempt by walking in front of a semi-truck. The applicant was psychiatrically hospitalized from 21 January 2015 to 30 January 2015. Records showed the applicant was also psychiatrically hospitalized 16 March 2015 to 19 March 2015 for reported suicidal ideation secondary to financial difficulties, relational problems with his girlfriend, and the recent death of his ex-wife. Upon discharge the applicant was reported as stable and denying current suicidal ideation. Encounter note dated 8 February 2018 showed the applicant called the veteran’s mental health hotline and reported suicidal ideation without intent and a desire for mental health treatment with the VA but ineligible due to discharge characterization. Records showed a VA social worker made multiple attempts to contact the applicant to provide resource information, but her attempts were unsuccessful. JLV are void any BH-related encounter notes after the 8 February 2018 note. No hardcopy civilian BH-related records were provided for review. f. The applicant is seeking upgrade of his under other than honorable conditions discharge. He contends his misconduct was related to PTSD. A review of the records was void of any BH-related diagnosis or treatment during service. Post-service records showed the applicant diagnosed with by VA providers with PTSD related to exposure to a blast endured during military service, and Alcohol Use Disorder. As there is a relationship between PTSD and avoidance of trauma reminder and the risk of re- traumatization, there is a nexus between the applicant misconduct characterized by going AWOL and his diagnosis of PTSD. As such, the applicant’s misconduct is mitigated by the disorder. g. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence in the records that the applicant had a condition or experience during his time in service that mitigated his misconduct. 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 was diagnosed with PTSD and Alcohol Use Disorder by VA providers. 2. Did the condition exist or experience occur during military service? Yes. PTSD is reportedly related to blast exposure during service. 3. Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant is seeking upgrade of his under other than honorable conditions discharge. He contends his misconduct was related to PTSD. A review of the records was void of any BH-related diagnosis or treatment during service. Post-service records showed the applicant diagnosed with by VA providers with PTSD related to exposure to a blast endured during military service, and Alcohol Use Disorder. As there is a relationship between PTSD and avoidance of trauma reminder and the risk of re-traumatization, there is a nexus between the applicant misconduct characterized by going AWOL and his diagnosis of PTSD. As such, the applicant’s misconduct is mitigated by the disorder. 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 considered the advising official findings that there is sufficient evidence in the records that the applicant had a condition or experience during his time in service that mitigated his misconduct. The advising official noted there is a relationship between PTSD and avoidance of trauma reminder and the risk of re-traumatization, there is a nexus between the applicant misconduct characterized by going AWOL and his diagnosis of PTSD. As such, the applicant’s misconduct is mitigated by the disorder. 2. However, the Board determined based on the preponderance of evidence there was insufficient evidence to mitigate the in-service misconduct. The Board noted the applicant provided no post service achievement or character letters of support that might have attested to his honorable conduct that might have mitigated the discharge characterization. Under liberal consideration, 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 to reverse the previous Board decision. 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 AR20150012909 on 4 August 2016. 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 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides 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. A discharge under other than honorable conditions is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade per Army Regulation 600–8–19. 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. 2. 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. 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; TBI; sexual assault; sexual harassment. Boards were directed 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 that misconduct which 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// ABCMR Record of Proceedings (cont) AR20220010174 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1