IN THE CASE OF: BOARD DATE: 14 June 2023 DOCKET NUMBER: AR20220010689 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. 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) * Department of Veterans Affairs (VA) How to Apply for a Discharge Upgrade Form * 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. The issue/condition related to the applicant’s request is post-traumatic stress disorder (PTSD). The applicant states that while on active duty he received an UOTHC discharge. He was discharged due to issues with his spouse that he now knows was mental health issues. He feels the actions taken against him were unjust. He needs medical assistance, when he tried to go to the VA he was denied because of his discharge. 3. The applicant provides a VA (How to Apply for a Discharge Upgrade) form, dated 8 December 2022, which indicates he suffered from an undiagnosed, misdiagnosed, or untreated mental health condition, including PTSD while in the service and was discharge for reasons related to this condition. 4. The applicant enlisted in the Regular Army on 8 January 1985 for three years. His military occupational specialty was 31V (Unit Level Communications Maintainer). 5. The applicant’s DA Form 2-1 (Personnel Qualification Record) shows in item 21 (Time Lost) the applicant was absent without leave (AWOL) from on or about: * 25 September 1986 through 8 October 1986 * 10 October 1986 through 10 November 1986 * 24 November 1986 through 1 December 1986 * 3 December 1986 through 5 December 1986 * 6 January 1987 through 6 January 1987 * 11 January 1987 through 9 June 1988 6. A Criminal Investigation Division (CID) Report of Investigation, dated 5 October 1987 shows the applicant wrongfully appropriated the private property of Specialist 4 , a 1982 Renault Alliance valued at $2590.00, for the purpose of renting the vehicle to other persons while was deployed. The investigation was closed until [the applicant], who was placed on a deserter status, as of 11 February 1987 was returned to military control. 7. A CID memorandum, dated 15 June 1988, shows the applicant was returned to military control on 10 June 1988 and transported to Fort Sill, OK, Personnel Confinement Facility on 14 June 1988. 8. The applicant did not desire a separation medical examination on 14 June 1988. 9. The available record is void of a separation packet containing the specific facts and circumstances surrounding the applicant’s discharge processing. However, Order 194- 32, issued by Headquarters, U. S. Army Field Artillery, Fort Sill, OK on 12 July 1988, reassigned the applicant to the transition point for separation processing. 10. The applicant was discharged on 21 July 1988. His DD Form 214 shows he was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), Chapter 10, with Separation Code "KFS" for the good of the service-in lieu of court martial. His service was characterized as UOTHC. He completed 2 years, 11 months, and 20 days of net active service. He was awarded or authorized the Army Achievement Medal and the Parachutist Badge. He lost time from: * 19 December 1985 to 22 December 1985 * 25 September 1986 through 8 October 1986 * 10 October 1986 through 10 November 1986 * 24 November 1986 through 30 November 1986 * 3 December 1986 through 4 December 1986 * 6 January 1987 through 6 January 1987 * 13 January 1987 to 8 June 1988 11. The absence of the applicant's separation packet means the Board is unable to determine the specific circumstances surrounding his discharge. However, because the Board has the applicant's DD Form 214, it must presume administrative regularity, meaning unless there is proof to the contrary, the Board assumes the Army's actions were administratively correct. As stated in ABCMR's governing regulation, the Board is not an investigative body, and the applicant bears the responsibility for providing evidence to validate that an error occurred in the processing of his separation. 12. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 13. In reference to medical assistance, decisions of the Veterans Administration are solely within the jurisdiction of that agency. While the Army Board for Correction of Military Record can correct errors in an individual's military records it has no authority to direct or influence decisions by other agencies. 14. 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. 15. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. The applicant asserts PTSD as a mitigating factor. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * Applicant enlisted into the RA on 8 January 1985. * Applicant’s DA Form 2-1 shows the applicant was absent without leave (AWOL) on 6 occasions between September 1986 and June 1988, with him also being DFR on one occasion (in February 1987). * A CID investigation 5 October 1987 indicates the applicant wrongfully appropriated private property of another soldier however the case was closed until he returned from AWOL/deserter status. Without his separation information, it is unclear the outcome of the investigation. * Applicant was discharged 21 July 1988 under AR 635-200, Chapter 10, in lieu of court marital with his service characterized as UOTHC. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, his ABCMR Record of Proceedings (ROP), Department of Veterans Affairs How to Apply for a Discharge Upgrade Form, DD 214, and service records. His separation packet was not available for review. The VA electronic medical record and DoD health records were reviewed, though no data was available. Lack of citation or discussion in this section should not be interpreted as lack of consideration. The applicant asserts that he was discharged due to issues with his spouse that he knows were mental health issues. He asserts PTSD as a mitigating factor. However, his records do not report any known marital concerns but do reflect at least 6 episodes of AWOL and him being investigated for larceny (separation records are unavailable). In regard to the assertion of PTSD, there is insufficient evidence that he was ever diagnosed with a mental health condition while in the service or since his discharge as no medical records were made available by the applicant, and there was no indication of mental health concerns in his supporting documents or service record. In addition, the applicant’s records do not indicate any military related deployments, combat, nor indication of a traumatic event while he was in the service. d. After reviewing the application and all supporting documents, this Agency Behavioral Health Advisor cannot provide an opine regarding mitigation based on behavioral health diagnoses without documentation of the specific misconduct that led to his discharge. In addition, the applicant has asserted PTSD as a mitigating factor in his discharge, however, no evidence was provided to support this assertion. 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 attests to having PTSD. 2. Did the condition exist or experience occur during military service? Yes, the applicant asserts PTSD/mental health issues during his time in service. 3. Does the condition or experience actually excuse or mitigate the discharge? Unable to opine. The applicant asserts mitigation due to PTSD though there is insufficient (no) documentation to support a behavioral health condition was likely present at the time of his discharge from the Army, nor currently. Regardless, without documentation of the specific misconduct that led to his discharge, an opine regarding mitigation based on behavioral health diagnoses cannot be provided. That said, there is evidence of misconduct in his record that can be briefly commented on (numerous AWOLS, investigated for larceny). AWOL can be an avoidant behavior consistent with diagnoses, history and sequalae of certain mental health conditions, to include PTSD. However, behaviors such wrongfully appropriating private property/larceny is not consistent with the natural history or sequelae of the alleged mental health condition and it does not affect one’s ability to distinguish right from wrong and act in accordance with the right. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, 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. The Board agreed behaviors such as wrongfully appropriating private property/larceny are not consistent with the natural history or sequelae of the alleged mental health condition and does not affect one’s ability to distinguish right from wrong and act in accordance with the right. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advisory official finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of PTSD, post-service achievements, or letters of reference in support of a clemency determination. 2. 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. The Board determined that the character of service the applicant received upon separation was not in error or unjust and 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. Title 10, USC, 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 (AR) 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 (AR) 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. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR), on 3 September 2014 [Hagel Memorandum], to carefully consider the revised 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. 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 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. 6. 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) AR20220010689 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1