IN THE CASE OF: BOARD DATE: 28 June 2023 DOCKET NUMBER: AR20220011548 APPLICANT REQUESTS: Reconsideration of his prior request for upgrade of his under other than honorable conditions (UOTHC) discharge to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) in lieu of DD Form 149 * Personal statement * Letters of Reference (three) 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 AR20120004934 on 11 September 2012. 2. The applicant states: a. It seems inequitable that his discharge was UOTHC for a pattern of misconduct. He had served a total of 3 years, 10 months, and 10 days of service and had been promoted to E-4, he received multiple awards, decorations, and medals. These actions do not indicate a pattern of misconduct. b. While stationed in Bad Hershfield, Germany, his mental health was being subjected to an over whelming amount of harassment by a sergeant (SGT), who wasn't in his platoon, but was in his unit, SGT . It changed his behavior, outlook, and trust. The Sgt constantly road his back, both on and off duty, about nothing. He belittled him in front of others whenever he could. The applicant would avoid going around especially if he felt or knew the SGT would be there. Even today he still cringes when he just says his name. Post-traumatic stress disorder (PTSD) is true, the situation made him develop anxiety and self-doubting. He didn't know who to turn to. He had no one to talk to in some of his darkest times of life. He wasn't mentally stable and wanted to die. c. He was dealing with hardships and other issues didn't help either. He was taking care of a home, his mother, and sister, who at 15 years old had just had a child. He never knew how to take care of a checking account or a check book, which was the cause of him writing bad checks. He did do that, but he can't see why this would be a pattern of misconduct. He hurt himself with those decisions and he has to learn how to manage and budget life. d. Over the past three decades since his career has ended, he has seen some of the good that he learned while serving, his leadership is an example of one just to name a few. Leadership is the act of guiding a team or individual to achieve a certain goal through direction and motivation. His motivation was taken by Sgt and it continued until he left Germany. The SGT only gave him orders but never a conversation about directions. Leaders encourage others to succeed. 3. The National Archives and Records Administration, who are the custodian of former servicemembers records advised that the applicant’s records were checked out and not available for review. The following information was obtained from his available DD Form 214 (Certificate of Release or Discharge from Active Duty) and his previous ABCMR record of proceedings. 4. The applicant enlisted in the Regular Army on 31 March 1988. He successfully completed training with award of military occupational specialty 19D (Cavalry Scout). The highest grade he held was E-4. 5. The applicant was formally counseled on numerous occasions on the following dates for the indicated offenses: * 29 October 1990, for writing a bad check and not having sufficient funds in his checking account * 22 December 1990, for writing a bad check and not having sufficient funds in his checking account * 29 January 1991, for writing a bad check and not having sufficient funds in his checking account * 1 April 1991, for writing a bad check and not having sufficient funds in his checking account * 29 April 1991, for writing a bad check and not having sufficient funds in his checking account * 1 July 1991, for missing formation * 7 July 1991, for not being at his appointed place of duty * 15 July 1991, for straggling in physical training formation * 6 August 1991, for indebtedness 6. The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice on the following dates for the indicated offenses: * 7 January 1991, for writing a bad check and not having sufficient funds in his checking account * 15 February 1991, for disobeying a lawful order from a superior officer * 4 October 1991, for being absent without leave (AWOL) from on or about 6 September 1991 through on or about 12 September 1991 7. The applicant's immediate commander notified the applicant on 5 November 1991, of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) paragraph 14-12b, for misconduct. The reasons cited by the commander were the applicant's repeated writing of bad checks, disobeying a lawful order, being AWOL, failing to report to his appointed place of duty, and forging a check. 8. The applicant consulted with legal counsel. He was advised of the basis for the contemplated discharge, the possible effects of an UOTHC, and the procedures and rights that were available to him. He elected to voluntarily waive consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than under honorable conditions (general). He indicated that he would provide statements in his own behalf; however, a statement is not available for review. 9. On 17 December 1991, the applicant's conditional waiver was disapproved. 10. On 27 December 1991, the separation authority approved the recommended separation under the provisions of Army Regulation 635-200, Chapter 14, with the issuance of an UOTHC Discharge Certificate. 11. The applicant was discharged on 10 January 1992, in the grade of E-1. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635- 200, paragraph 14-12b, by reason of misconduct- pattern of misconduct. His service characterization was UOTHC. He was credited with 3 years, 9 months, and 4 days of net active service with 6 days of lost time. His awards are listed as the National Defense Service Medal, Army Service Medal, Overseas Service Medal, Marksman Qualification Badge with Rifle bar, and the Sharpshooter Qualification Badge with Hand Grenade bar. 12. The ABCMR denied the applicant’s request for an upgrade on 11 September 2012 stating his military service records show he had a history of writing bad checks; he forged his signature on a check, received three NJPs for disobeying a lawful order, was AWOL, and failed to report to his appointed place of duty. Based on these facts, his service clearly did not meet the standards of acceptable conduct and performance. Accordingly, his request for relief was denied. 13. The applicant provides three-character reference letters from former service members, attesting to his readiness to learn, his problems with Sgt Wxxx, his job performance, and his emotional mistreatment. The applicant is described as a good Soldier of great character, loving personality, and a pleasure to be around. He has a playful character, kindness, and instant adaptation to every single subordinate. He has extraordinary work ethic and passion for anything he does. 14. In determining whether to grant relief the Boards for Correction of Military/Navy Records (BCM/NR) 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 a reconsideration of his prior request for upgrade of his under other than honorable conditions (UOTHC) discharge to an under honorable conditions (general) discharge. The applicant contends that harassment by a sergeant and his mental health were mitigating factors in his discharge. 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 in the RA on 31 March 1988. * Applicant received numerous formal counseling statements. He was counseled for writing bad check and not having sufficient funds five times between 29 October 1990 and 29 April 1991. He was also counseled for missed formation, not being at his appointed place of duty, straggling physical training formation and indebtedness. * He received non-judicial punishment (NJP) 7 January 1991 for writing a bad check and not having sufficient funds, on 15 February 1991 for disobeying a lawful order form a superior officer, and on 4 October 1991 for being AWOL on or about 6 September 1991 to 12 September 1991. * On 5 November 1991 he was notified of command’s plan to initiate separation under AR 635-200, Chapter 14-12b for patters of misconduct, with command citing the repeated writing of bad checks, disobeying lawful order, AWOL, and failing to report to his appointed place of duty and forging a check. * Applicant was discharged 10 January 1992, under AR 635-200, paragraph 14-12b, by reason of misconduct with an UOTHC characterization of service. * On 11 September 2012 the ABCMR denied the applicants request for an upgrade. 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 293, his ABCMR Record of Proceedings (ROP), DD Form 214, personal statement, letters of reference (three), as well as documents from his service record and previous board proceedings. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV) and AHLTA, though minimal data was present. Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant asserts that he was being harassed by a sergeant in his unit and that he experienced PTSD, and/or anxiety and self-doubt in response. In addition, he noted experiencing other significant psychosocial stressors at the time. He asserts this experience, and conditions, mitigate his discharge. He also notes that he had never learned to manage a checking account and is still unsure how him failing at this, leading to writing bad checks, was a pattern of his misconduct. Per a review of the applicant’s electronic health record (EHR), there is no indication that he was ever seen for mental health nor that he was ever diagnosed with a mental health condition. The applicant did not provide any additional civilian or military records to support his contention that he had anxiety, PTSD nor any other mental health condition (during service nor currently). Though, it is important to note that given his time in service it is not uncommon for there to be no records. However, he did include several letters of reference, where friends and peers of the applicant attest to his mental state during his time of service, describing anxiety and depression secondary to the harassment he had received. e. Based on the available information it is the opinion of the Agency Behavioral Health Advisor that there is minimal evidence to support that the applicant had a condition at the time of service that mitigated his discharge (no medical records nor official diagnoses, but peer observation/accounts). However, per Liberal Consideration guidance, his contention is sufficient to warrant the Board’s consideration. It is also the opinion of the Agency Behavioral Health Advisor that there is sufficient evidence to support that the applicant did have a potentially mitigating experience (harassment). 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 reported harassment and a mitigating condition (PTSD). 2. Did the condition exist or experience occur during military service? Yes, the mitigating experiences and condition were reportedly during his time in service. 3. Does the condition or experience actually excuse or mitigate the discharge? Partial. There is no evidence of an official diagnosis, nor mental health treatment, of anxiety or trauma condition during his time in service. However, there is sufficient evidence through self-report and provided character reference that the applicant was harassed and that he was likely experiencing some anxiety and depressive symptoms. Some of his misconduct can be associated with mental health concerns secondary to the psychological impact of harassment. For instance, his failure to report and going AWOL could indicate avoidance, his straggling during PT, and even being more irritable and disrespecting a superior officer could be indicative of low self-esteem and low motivation secondary to harassment. These behaviors are consistent with the history and sequalae of certain mental health conditions, to include depression, anxiety and trauma. However, there is no nexus between his asserted mental health condition(s), nor harassment, and behaviors such as not paying his debts, forging a check, and writing bad checks. In summary, per Liberal Consideration, the applicant’s assertion of a mitigating condition, and some evidence of a mitigating experience, partial mitigation is recommended. BOARD DISCUSSION: 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 noted there is no nexus between his asserted mental health condition(s), nor harassment, and behaviors such as not paying his debts, forging a check, and writing bad checks. 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 Board did note the medical opine of no evidence of an official diagnosis, nor mental health treatment, of anxiety or trauma condition during his time in service. However, there is sufficient evidence through self-report and provided character reference that the applicant was harassed and that he was likely experiencing some anxiety and depressive symptoms. Some of his misconduct can be associated with mental health concerns secondary to the psychological impact of harassment. Based upon a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust and reversal of the previous Board decision is without merit.. ? 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 to amend the decision of the ABCMR set forth in Docket Number AR20120004934 on 11 September 2012. 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 15-185 (ABCMR) sets forth procedures for processing requests for the correction of military records. Paragraph 2-15a governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR if the decision has not previously been reconsidered. The applicant must provide new evidence or argument that was not considered at the time of the ABCMR's prior consideration. 2. Title 10, U.S. Code, Section 1556, provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (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 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. 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 Discharge Review Boards 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 a 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. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and BCM/NRs on 25 July 2018, 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.) AR20220011548 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1