IN THE CASE OF: BOARD DATE: 11 May 2023 DOCKET NUMBER: AR20220011022 APPLICANT REQUESTS: an upgrade of his characterization of service from under other than honorable conditions to a general discharge 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), 30 June 2022 . Self-authored letter, undated 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 is a dedicated father, husband, and a positive member of society. He joined the military in 1998, and at the time he was not in shape and lacked direction. Jump school was the best experience of his life. He got married and moved to Fort Bragg, N.C. There were gangs and drugs around him; his family was unsafe. He informed his supervisors, but they did nothing. He used marijuana to deal with what was going on. He was punished and did not receive any help. He took leave, not knowing he was not on leave and instead he was absent without leave (AWOL). He did not get correspondence from his command. He was not aware that he was separating from the military with nothing. He would like an upgrade so that he can receive his veteran benefits. Post-traumatic stress disorder (PTSD) is related to his request. 3. On 10 November 1998, the applicant enlisted in the Regular Army. 4. On 30 April 1999, the applicant was assigned to Fort Bragg, N.C. 5. On 21 July 2000, the applicant received a General Officer Memorandum of Reprimand for the illegal use of marijuana on 22 June 2000. 6. On 28 July 2000, he acknowledged the receipt of the General Officer Memorandum of Reprimand, and he elected not to submit statements on his behalf. 7. On 27 November 2000, his duty status changed from present for duty (PDY) to AWOL (Absent without Leave), and he was subsequently dropped from the rolls on 27 December 2000. 8. On 31 January 2001, the applicant surrendered to military authorities. 9. His DD Form 458 (Charge Sheet) shows the applicant did on or about 27 November 2000 without authority absent himself from his organization located at Fort Bragg, N.C., and did remain so absent until on or about 31 January 2001. 10. On 8 February 2001, 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 understood that if he desire a review of his discharge, he must apply to either the Army Discharge Review Board or the Army Board for Correction of Military Records and that the act of consideration by either board does not imply that his discharge will be upgraded. d. He also understood that he may, up until the date the discharge authority approves his discharge, withdraw his acceptance of this discharge. 11. On 7 February 2002, 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. 12. On 12 February 2002, consistent with the chain of command recommendations, the separation authority approved the applicant's elimination from the service under the provisions of (UP) 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. 13. The applicant was discharged from active duty on 27 February 2002 UP of AR 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with tan under other than honorable conditions character of service. Additionally, he received a separation code of "KFS" and a reentry code of "4." His DD Form 214 shows he completed 3 years, 1 months, and 13 days of active service with lost time from 27 November 200030 January 2001. Additionally, he was awarded or authorized: . Army Service Ribbon . Expert Marksmanship Qualification Badge with hand grenade . Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) 14. There is no indication that the applicant requested an upgrade of his discharge from the Army Discharge Review Board within its 15-year statute of limitations. 15. 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. 16. 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. 17. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his characterization of service from under other than honorable conditions to a general discharge. He contends he had 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 10 November 1998; 2) On 21 July 2000, the applicant received a General Officer Memorandum of Reprimand for the illegal use of marijuana; 3) On 27 November 2000, the applicant was found AWOL. He surrendered to military authorities on 21 January 2001; 4) The applicant was discharged on 27 February 2002, chapter 10, for the good of the service in lieu of trial by court-martial. His character of service was under other than honorable conditions. c. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional medical documentation was provided for review. d. The applicant asserts he was using marijuana to manage stress related to his family’s living situation at his home station. He also stated he was unaware he was AWOL while he was on leave, and his command did not notify him. There was no indication the applicant reported mental health symptoms while on active service. A review of JLV was void of behavioral health records, and the applicant did not provide any civilian medical documentation. The applicant receives no service-connected disability. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. However, the applicant contends he was experiencing a PTSD that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. Kurta Questions 1. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant asserts he was experiencing PTSD which mitigates his misconduct. 2. Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing PTSD while on active service. 3. Does the condition experience actually excuse or mitigate the discharge? No, there is insufficient evidence beyond self-report the applicant was experiencing PTSD while on active service. There is also no evidence the applicant was exposed to combat or a potentially traumatic event while on active service. The applicant did go AWOL and used marijuana, which can be avoidant behaviors and sequalae to PTSD. However, the presence of these behaviors is not sufficient to establish a history of PTSD during active service. BOARD DISCUSSION: 1. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The Board carefully considered the applicant's request, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA Medical Advisor. Other than his own statement, the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by PTSD. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. 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. 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. 3. 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. 4. 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. 5. 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 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. 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. 6. 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. 7. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11, shows applicant’s do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS//