IN THE CASE OF: BOARD DATE: 21 July 2023 DOCKET NUMBER: AR20220011670 APPLICANT REQUESTS: Reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * Applicant Letter * Mental Health Assessment 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 AR20210009206 on 21 December 2021. 2. The issue/condition related the applicant’s request is post-traumatic stress disorder (PTSD). The applicant provides a letter that states he previously received a letter dated 5 June 2021 regarding his previous application for correction of his military record dated 23 August 2020. The letter requested that he provide an official diagnosis of his PTSD. After thirteen plus years of struggle, he is finally able to provide that official diagnosis. 3. The applicant provides a Mental Health Assessment, date of assessment 9 May 2022. The assessment shows an encounter for mental health service for: perpetrator of nonparental child sexual abuse, PTSD, persistent depressive disorder (dysthymia), antisocial personality disorder, alcohol use disorder, mild, in sustained remission, in a controlled environment and cannabis use disorder, mild, in sustained remission, in a controlled environment 4. The applicant enlisted in the Regular Army on 28 February 1986 for four years. His military occupational specialty was 11B (Infantryman). 5. The applicant was absent without leave (AWOL) on 6 October 1986 and present for duty on 27 October 1986. He was again AWOL on 28 October 1986 and dropped from the rolls as a deserter on 27 November 1986. He surrendered to civilian authorities and was confined by civilian authorities on 22 December 1986. He was present for duty on 29 December 1986. 6. Court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ) on 6 January 1987. His DD Form 458 (Charge Sheet) shows he was charged for without authority, absenting himself from his organization: * on or about 6 October 1986 and did remain so absent until on or about 27 October 1986 * on or about 28 October 1986 and did remain so absent until on or about 29 December 1986 7. The applicant consulted with legal counsel on 7 January 1987 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a UOTHC discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations- Enlisted Personnel), Chapter 10, for the good of the service. 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 further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could expect to encounter substantial prejudice in civilian life, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State. b. He elected not to provide any statements in his own behalf. c. He elected not to undergo a physical evaluation prior to separation. 8. The applicant's immediate commander and intermediate commanders recommended approval of his request for discharge and issuance of a discharge UOTHC. 9. The separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, Chapter 10, and directed that he be reduced to the lowest enlisted grade and issued an UOTHC discharge. 10. The applicant was discharged on 6 March 1987. His DD Form 214 (Certificate of Release or Discharge from active Duty) shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service-in lieu of court- martial. His service was characterized as UOTHC, with Separation Code KFS and Reenlistment Code 3B, 3C, and 3. He completed 9 months and 17 days of net active service. He lost time from 6 October 1986 to 27 October 1986 and 28 October 1986 to 28 December 1986. 11. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 12. On 21 December 2021, the ABCMR determined relief was not warranted. Based upon the short term of honorable service completed error to a pattern of lengthy AWOL offenses leading to the applicant’s separation and the findings and recommendation of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s characterization of service and denied his request for upgrade of his discharge. a. In conjunction with this application a Medical Review shows that based on the available information and in accordance with the liberal consideration guidance, it was the opinion of the agency psychologist there was insufficient evidence to support the presence of PTSD, Traumatic Brain Injury (TBI) or any other behavioral health conditions which led to his UOTHC discharge. b. No medical records supporting he presence of significant psychological symptoms or diagnoses during his time in service were provided for review. A discharge upgrade was not recommended at the time. 13. 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. 14. 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 (UOTHC) discharge to general, under honorable conditions. He contends he had PTSD, which mitigated his discharge. 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 28 February 1986; 2) The applicant was found to be AWOL from 6-27 October 1986 and then again 28 October-29 December 1986; 3) The applicant was discharged on 6 March 1987, Chapter 10, for the good of the service- in lieu of court-martial. His service was characterized as UOTHC; 4) On 21 December 2021, ABCMR considered and denied the applicant’s petition for upgrade of his discharge. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service. The VA’s Joint Legacy Viewer (JLV) and civilian medical documentation were also examined. d. On his application, the applicant noted PTSD was related to his request, as a mitigating factor in the circumstances that resulted in his separation. There is insufficient evidence the applicant reported any behavioral health symptoms during his brief enlistment. A review of JLV provided no evidence the applicant has been seen by the VA for treatment related any mental health disorder including PTSD, and the applicant receives no service-connected disability. The applicant did provide civilian medical documentation (dated 9 May 2022) from the Minnesota Sex Offender Program. The applicant stated he believes he fits criteria for PTSD and completed a self-report questionnaire for PTSD. He scored within the limits of an individual who could be diagnosed with PTSD. There was no information provided on when his symptoms began or if they were related to his military experience. 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 discharge to warrant an upgrade in discharge status. 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 PTSD that contributed to his misconduct. He also provided a documentation that he scored within the range of an individual who should be evaluated for PTSD on a self-report questionnaire in 2022. (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 a PTSD while on active service. The applicant did go AWOL multiple times, which can be a sequalae to PTSD, but this is not sufficient to establish a history of a condition during active service. However, the applicant contends he was experiencing a mental health condition that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered the applicant's request, supporting documents and evidence in the records. The Board considered the frequency and nature of the misconduct, the reason for separation and published DoD guidance for consideration of discharge upgrade requests. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference to weigh in support of a clemency determination. Based on a preponderance of evidence available for review, the Board determined that 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 to amend the decision of the Army Board for Correction of Military Records set forth in Docket Number AR20210009206 on 21 December 2021. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, U.S. Code, 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. 2. 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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provided 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. 3. 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. 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; 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. 5. 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) AR20220011670 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1