IN THE CASE OF: BOARD DATE: 21 June 2023 DOCKET NUMBER: AR20220010633 APPLICANT REQUESTS: reconsideration of his previous request for upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Spouse support letter * support letter * Report of Medical Examination, 16 March 1992 * Verification of tour in SWA for Operation Desert Shield/Storm, 18 June 1991 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 AR20160002932 on 21 March 2017. 2. The applicant states the change in law in connection with Kennedy v. McCarthy, Iraq and Afghanistan era should also apply to Operation Desert Shield/Storm. Veterans Affairs (VA) standard of review which state: The receipt of military awards such as, but not limited to, the Vietnam Service or Campaign Medal, Kuwait Liberation Medal, Iraq Campaign Medal, Afghanistan Campaign Medal is generally considered evidence of service in an area of potential hostile military or terrorist activity. Since Veteran served in an area designated as an imminent danger pay area, the VA should concede that Veteran may have been exposed to the fear of hostile and terrorist activity and should be scheduled for an exam in order to make an inform decision on whether Veteran has PTSD (post-traumatic stress disorder) or not. Likewise, this Veteran has 2 Bronze Stars from Operation Desert Shield/Storm. He has met the VA standard for the stressor. Veterans: Pact Act 2022 adds New Presumptive; Gulf War Syndrome updates any Veteran served from 2 August 1990 onward. Veteran equal protection rights under the US Constitution. 3. The applicant had prior honorable service from 5 July 1985 – 27 February 1992. He held military occupational specialty 11M (Fighting Vehicle Infantryman). He served as an infantryman in Southwest Asia (SWA) from 30 December 1990 to 13 June 1991. 4. He served in the Army National Guard from 16 March 1992 – 30 March 1998. 5. He enlisted in the Regular Army on 31 March 1998. 6. DA Form 4187 (Personnel Action) shows his duty status changed as follows: * Present for duty (PDY) to absent without leave (AWOL) effective 1800 hours 19 September 1998 * AWOL to PDY effective 1300 hours 21 September 1998 7. He received non-judicial punishment under article 15 Uniform Code of Military Justice on 8 October 1998, for on or about 18 September 1998, without authority fail to go at the time prescribed to his appointed place of duty. Also, on or about 18 September 1998, treat with disrespect in language toward a non-commissioned officer. He was reduced to private first class (E-3). The applicant appealed the punishment. 8. On 15 October 1998, his appeal was denied by the next higher commander. The proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust nor disproportionate to the offenses committed. 9. DA Form 4187 shows his duty status changed as follows: * PDY to AWOL effective 0630 hours 20 October 1998 * AWOL to dropped from rolls effective 0900 hours 21 October 1998 10. Orders 337-20, issued by Headquarters, US Army Personnel Control Facility, Fort Knox, KY shows he was returned to duty on 11 November 1999, after he was apprehended by civilian authorities at 0845 hours at Roswell, GA. 11. DD Form 458 (Charge Sheet) shows on 19 November 1999, charges were preferred against him for the AWOL period of 20 October 1998 – 11 November 1999. 12. On 19 November 1999, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He acknowledged that by submitting his request for discharge, he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge. He indicated he understood: * he might be discharged under other than honorable conditions (UOTHC) and given a discharge UOTHC * he might be ineligible for many or all benefits administered by the Department of Veterans Affairs * he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws * he might expect to encounter substantial prejudice in civilian life because of a discharge UOTHC * he elected not to make a statement in his own behalf 13. On 27 September 2000, his commander recommended discharge UOTHC. 14. On 14 December 2000, the separation authority approved his voluntary request for discharge and directed the issuance of a discharge UOTHC. He directed that he be reduced to private (E-1). 15. On 23 January 2001, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of AR 635-200, chapter 10. He completed 1 year, 8 months, and 24 days of net active service this period with 389 days of lost time. His service was characterized as UOTHC. He was awarded or authorized: * Bronze Star Medal (2d Award) * Army Commendation Medal * Army Achievement Medal * Army Good Conduct Medal (2d Award) * Army Reserve Components Achievement Medal * National Defense Service Medal * Southwest Asia Service Medal with 2 bronze service stars * Noncommissioned Officers Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * Expert Marksmanship Qualification Badge (M16 Rifle) * Sharpshooter Marksmanship Qualification Badge (Grenade) * Air Assault Badge 16. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. On 1 July 2014, the ADRB determined that he was properly and equitably discharged; therefore, his request for upgrade was denied. 17. On 21 March 2017, in ABCMR Docket Number AR20160002932, the Board considered his application but determined that after reviewing the application and all supporting documents, that relief was not warranted. The Board denied his request. 18. The applicant provides: a. Spouse support letter stating in part her husband does not talk about his trauma and gets extremely upset when asked about it. He is numb emotionally, does not communicate well, avoids activities with the family, barely sleeps, and has been in denial for a long time. He is jumpy, easily irritated, and agitated. He forgets people easily and must be reintroduced to them several times. His behavior about his health is reckless and self-destructive. She has used different tools and tactics to try to get him up and get treatment for his health issues, but he gets angry and suspicious of her intentions like she is the enemy. The entire letter is available for the Board’s review. b. support letter stating in part, before the applicant (her cousin) entered the military, he was fun, upbeat, caring and did not have any mental issues. He would always come around the family in a happy mood, pretty much the life of the party. That all changed when he returned home from service. He did not want to come around family and he never was happy anymore. He would only go to work and back home. At times, she would go to his home to visit him, and he would be sitting in the back of the house in a dark room with the drapes nailed shut. He would go days without eating because he was too paranoid to leave his home. The entire letter is available for the Board’s review. c. Report of Medical Examination, 16 March 1992, showing his examination post deployment to Operation Desert Shield/Storm. d. Verification of tour in SWA for Operation Desert Shield/Storm, 18 June 1991, showing he served in SWA from 31 December 1990 – 14 June 1991. 19. 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. 20. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge. He contends he had mental health conditions including 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 began his active service on 5 July 1985. He enlisted Army National Guard from 16 March 1992 – 30 March 1998 and then enlisted in the Regular Army on 31 March 1998; 2) The applicant served as an infantryman in Southwest Asia (SWA) from 30 December 1990 -13 June 1991; 3) The applicant was found to be AWOL from 19-21 September 1998 and then again from 20 October 1998-11 November 1999; 4) The applicant was discharged on 23 January 2001, Chapter 10, in lieu of trial by court- martial. His characterization of service was UOTHC; 5) On 1 July 2014, the Army Discharge Review Board (ADRB) denied his request for a change in the character and/or reason of his discharge; 6) On 21 March 2017, the ABCMR reviewed and denied the applicant’s request for an upgrade. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and records. The VA’s Joint Legacy Viewer (JLV) and service medical documentation provided by the applicant were also reviewed. d. The applicant asserts he was experiencing mental health conditions including PTSD as a result of his deployment to (SWA), which mitigates his misconduct. The applicant was deployed to a combat environment, but he did not report behavioral health symptoms after returning from his deployment as evident from his medical examination dated 16 March 1992. There is also insufficient evidence the applicant endorsed behavioral health symptoms while on active service. However, a review of JLV provided evidence the applicant has been diagnosed and treated for an anxiety disorder, depression, PTSD, insomnia, nightmares, and alcohol abuse related to his combat experiences while deployed to SWA. The applicant has been actively engaged in treatment at the VA since 2008. The applicant does not receive any service-connect disability. 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 mitigated his misconduct. 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 symptoms of a mental health conditions including PTSD that contributed to his misconduct. 2. Did the condition exist or experience occur during military service? Yes, the applicant reports his mental health conditions including PTSD began during his active service after his deployment to SWA. There is also sufficient evidence the applicant has consistently reported behavioral health symptoms as a result of his deployment to SWA while engaged in the VA system of care. 3. Does the condition or experience actually excuse or mitigate the discharge? Yes, there is sufficient evidence the applicant was deployed to a combat environment during his active service. There is also sufficient evidence the applicant has been diagnosed with mental health conditions including PTSD which are related to his combat experiences in SWA. Avoidant behaviors are often a natural sequalae to mental health conditions including PTSD. The applicant was also found to be AWOL on two occasions, and this avoidant behavior is also a natural sequalae to some mental health disorder including PTSD. Therefore, there is sufficient evidence in support of an upgrade in discharge status for the applicant. 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. Upon review of the applicant’s petition, available military records and the medical review the Board concurred with the advising official finding sufficient evidence to support the applicant had condition or experience that mitigated his misconduct. The Board noted the medical opine that found sufficient evidence the applicant has consistently reported behavioral health symptoms as a result of his deployment to SWA while engaged in the VA system of care. Furthermore, the Board determined the applicant has been diagnosed with mental health conditions including PTSD which are related to his combat experiences in SWA. 2. The Board agreed the applicant’s avoidant behaviors, based on the medical review are often a natural sequalae to mental health conditions including PTSD. It was noted by the Board the applicant was also found to be AWOL on two occasions, and this avoidant behavior is also a natural sequalae to some mental health disorder including PTSD. Based on the preponderance of evidence and the medical opine, the Board agreed there was sufficient evidence in addition to the applicant’s prior periods of honorable service and awards that warrants an upgrade of the applicant’s discharge to honorable. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 showing his characterization of service as honorable. 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 (AR) 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. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate. a. 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. b. 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. 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; traumatic brain injury; 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 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 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. 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 based on 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. 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) AR20220010633 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1