IN THE CASE OF: BOARD DATE: 2 August 2023 DOCKET NUMBER: AR20120010469 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) characterization of service to under honorable conditions (general) and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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. The applicant states he honorably served his country during a time of war. He now must live with the consequences and repercussions of severe post-traumatic stress disorder (PTSD) for the rest of his life. 3. The applicant enlisted in the Regular Army on 13 July 2001 for a 3-year period. The highest rank he obtained was specialist/E-4. 4. Two DA Forms 4187 (Personnel Action) show the following changes in his duty status: * Present for Duty to absent without leave (AWOL) on 19 November 2002 * AWOL to Dropped from Rolls on 19 December 2002 5. The applicant’s service record contains a criminal docket, from the Court of Common Pleas of Allegheny County, dated 17 February 2004, which shows the applicant plead guilty to ten offenses of forgery, theft by deception, and criminal mischief. The offenses were committed between 11 December and 17 December 2003. The applicant’s sentence and penalties included probation (maximum of two years) and $592.00 restitution. 6. He accepted non-judicial punishment under the provisions of Article 15, of the Uniform Code of Military Justice, on 28 September 2004 for being AWOL, on or about 19 November 2002 until on or about 28 May 2004. His punishment consisted of forfeiture of $596.00 pay per month for two months, 45 days of extra duty, and 45 days of restriction. 7. The applicant served in Iraq from 20 January 2005 through 7 January 2006. 8. A DA Form 4187 shows his duty status changed from Present for Duty to AWOL on 5 April 2006. 9. An incident report from the Commander, 2nd Battalion 34th Armor Regiment, dated 17 April 2006 shows the applicant was arrested for theft and heroin possession at the residence of his mother on 17 April 2006. The applicant was still in an AWOL status. 10. A police report summary, dated 17 April 2006, shows two officers responded to a burglary report on that same date. The officers spoke with [the applicant’s] mother. She stated she was missing $170.00 in currency which she kept in a safe. She further stated her son, whom she believed to be AWOL, broke into the safe and took the money to buy drugs. She requested the officers search her attic to look for drug paraphernalia. Officers seized paraphernalia consistent with heroin use. While on the scene, the applicant arrived and was taken into custody. He advised officers he used heroin and had heroine on his person. He admitted to breaking into the safe and taking the money. He also stated he stole a check, forged his father’s name, cashed the check, and used the money to buy heroin. He requested the officer contact his Army unit commander. 11. The applicant’s service record contains a criminal docket, from the Court of Common Pleas of Allegheny County, dated 17 April 2006, which shows the applicant was charged with two offenses of theft by unlawful taking, receiving stolen property, intentional possession of a controlled substance by person not registered, use/possession of drug paraphernalia, and forgery. The applicant’s record does not include any additional information on the sentencing or trial decision. 12. Two DA Forms 4187 show the following changes in his duty status: * AWOL to Dropped from Rolls on 6 May 2006 * Dropped from Rolls to Return to Duty on 5 June 2006 13. A DA Form 2823 (Sworn Statement), dated 5 June 2006, shows the applicant provided a sworn statement upon his return to duty, wherein he states, in effect: a. During his AWOL, he was charged and put in jail for possession of heroin. His court date was still pending based upon the outcome of his chapter. He was using heroin. Following his block leave, he returned for one day and went on leave again. He did not return. He was arrested for disorderly conduct and spent a week in jail. He was arrested again on 9 May 2006 for possession of heroin, charged in court and spent time in jail from 9 May 2006 to 2 June 2006 with 15 months of probation. b. He went AWOL because he started using drugs. He wanted to come back, but every time he tried, he could not leave it alone. He returned because he wanted to get help. He needed a mental evaluation. He could not sleep, had bad dreams, was depressed, and could not make decisions on his own. He believed this was why he started doing drugs. He did not feel that way in Iraq but could not say what the cause of it was. He tried to get help from the Department of Veterans Affairs (VA) while he was AWOL, but they turned him away. 14. A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against the applicant on 8 June 2006, for being AWOL from on or about 5 April 2006 to on or about 5 June 2006. His chain of command recommended trial by a special court- martial empowered to adjudge a bad conduct discharge. 15. The applicant consulted with legal counsel on or about 19 July 2006. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a UOTHC discharge, and the procedures and rights that were available to him. b. After receiving legal counsel, he voluntarily requested discharge, in lieu of trial by court-martial, under the provision of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 10. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged making this request free of coercion. He further acknowledged understanding if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his behalf. He did not provide a statement. 16. His immediate and intermediate commanders recommended approval of his request for discharge in lieu of trial by court-martial, with a service characterization of UOTHC, on 19 July 2006. 17. On 26 July 2006, the separation authority approved the recommended discharge and directed a UOTHC characterization of service. 18. The applicant was discharged on 1 August 2006, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, with an UOTHC characterization of service. He was credited with 3 years, 4 months, and 9 days of net active service. He had lost time from 19 November 2002 to 28 May 2004 and 5 April 2006 to 4 June 2006. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded or authorized the following: * Army Commendation Medal * National Defense Service Medal * Iraq Campaign Medal * Global War on Terrorism Service Medal * Army Service Ribbon * Overseas Service Ribbon 19. The Army Discharge Review Board (ADRB) reviewed the applicant’s request for an upgrade of his characterization of service on 22 August 2011. After careful review, the Board determined the applicant was properly and equitably discharge and denied his request. 20. The applicant's record does not contain, nor does he provide documentation pertaining to his claim of PTSD. 21. Discharges under the provisions of Army Regulation 635-200, Chapter 10, are voluntary requests for discharge for the good of the service, in lieu of a trial by court- martial. An UOTHC character of service is normally considered appropriate. 22. The Board should consider the applicant's argument and/or evidence in accordance with the published equity, injustice, or clemency determination guidance. 23. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record 9EMR) (AHLTA and or MHS Genesis), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting an upgrade of his 1 August 2006 under other than honorable discharge. He states: “I honorably served my country in a time of war and am now having to live with the consequences and repercussions of dealing with sever PTSD for the rest of my life.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 for the period of Service under consideration shows he entered the regular Army on 13 July 2001 and received an under other than honorable conditions discharge on 1 August 2006 under the separation authority provided chapter 10 of AR 635-200, Active Duty Enlisted Administrative Separations (6 June 2005): Discharge in Lieu of Trial by Court-Martial. It shows the former Armor Crewman (19K) served in Iraq from 20 January 2005 thru 7 January 2006. The DD 214 shows two periods of lost time under 10 USC § 972; from 19 November 2002 thru 28 May 2004 and 5 April 2006 thru 4 June 2006 (618 days). d. A previous request for a discharge upgrade was denied by the ADRB on 5 August 2011 (AR20110008393). The board is referred to the record of proceedings for that case. Because this denial was before the institution of liberal consideration polices, this review will concentrate on evidence of a potentially mitigating mental health condition as well as new evidence submitted with this application. e. Personnel Actions (DA From 4187) show he was declared absent without leave (AWOL) on 19 November 2002 and dropped from rolls (DFR) on 19 December 2002. The DD 214 shows he was returned to duty on and 6 April 2006. The applicant received a field grade Article 15 for this period of AWOL from his battalion commander on 28 September 2004. f. A Court of Common Pleas of Allegheny County, Pennsylvania, shows the applicant pled guilty to 5 counts of “Forgery – Alter Writing,” three counts of “Theft by Decep- False Impression,” and one count of “Criminal Mischief” on 26 May 2004. g. A second series of DA 4187s shows the applicant was reported AWOL on 5 April 2006, DFR on 6 May 2006, and returned to duty on 5 June 2006. A Charge Sheet (DD Form 458) shows the applicant was charged with this period of AWOL. h. An Incident Report prepared for his battalion commander show the applicant was arrested by civilian authorities for theft and heroin possession on 17 April 2006: “Summary of incident: CPL [Applicant]'s mother called the Police Department on the morning of 17 APR06 to report that CPL [Applicant] had broken into her safe. When the police arrived at the residence of the [Applicant’s mother]'s, CPL [Applicant] was arrested for stealing a check, in which he falsified his father’s signature and also for having heroine on his possession. Also, CPL [Applicant] has been AWOL since 31 MAR06.” i. The applicant was subsequently charged with two counts of “Theft By Unlaw Taking-Movable Prop,” and one count each of “Receiving Stolen Property,” “Int Poss Contr Subst By Per Not Reg,” “Use/Poss Of Drug Paraph,” and “Forgery-Alter Writing.” j. Review of the EMR shows he was scheduled to undergo a mental health evaluation on 15 June at 1300 but the results of this evaluation were not available for review. k. On 19 July 2006, the applicant voluntarily requested discharge in lieu of trial by court-martial as provided for in chapter 10 of AR 635-200. His request was approved by the Commanding General of the 24th Infantry Division (Mechanized0 and Fort Riley on 26 July 2006 with the direction his discharge was to be characterized as Under Other Than Honorable Conditions. l. Review of his records in JLV shows he has no diagnoses listed on his medical problem list. m. There is no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ and civilian violations; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his voluntary separation from the Army. n. It is the opinion of the ARBA medical advisor that a discharge upgrade remains unwarranted. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? NO (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A 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 no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ and civilian violations; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his voluntary separation from the Army. The Board agreed there was insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. 2. The Board noted, the applicant provided insufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. Furthermore, the Board determined DES compensates an individual only for service incurred condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. 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. 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. 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. Section 1556 of Title 10, U.S. 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. 3. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11 states applicants do not have the right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. 4. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides, in pertinent part, 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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. 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 Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) 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. 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 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, 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) AR20220010469 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1