IN THE CASE OF: BOARD DATE: 28 June 2023 DOCKET NUMBER: AR20220011944 APPLICANT REQUESTS: reconsideration of his previous request to upgrade his characterization of service from under other than honorable conditions to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record), 7 September 2022 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 AR2003091540 on 25 March 2004. 2. The applicant provides new argument which was not previously considered by the Board. 3. The applicant states/notes – a. He was harassed due to the severe knee injury he suffered during his time in service. b. He was advised by the Judge Advocate General's Corps office in Selfridge, Michigan to submit a request to upgrade his discharge. c. His application shows his request is related to Post-Traumatic Stress Disorder (PTSD), other mental health issues, and sexual harassment. 4. The applicant enlisted in the regular Army on 4 September 1986 5. Three DA Forms 4187 (Personnel Action) show: a. He departed in an Absent Without Leave (AWOL) status on 24 June 1987. b. His duty status changed from AWOL to Dropped from Rolls (DFR) on 24 July 1987. c. His duty status changed from DFR to Attached/Present for Duty (PDY) on 1 February 1988; the date he surrendered to military authorities. 6. A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against the applicant on 2 February 1988; he was charged with being AWOL from on or about 24 June 1987 to on or about 1 February 1988. 7. On 2 February 1988, the applicant voluntarily requested discharge for the good of the service under Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10. He understood that he could request discharge for the good of the service because of the following charge which was preferred against him under the Uniform Code of Military Justice, which authorizes the imposition of a bad conduct or dishonorable discharge: Article 86 (AWOL) from 24 June 1987 to 1 February 1988. The applicant acknowledged that he made the request of his own free will and was not coerced by any person. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charges 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 were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veteran’s Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State law and encounter substantial prejudice in civilian life because of an under other than honorable discharge. Additionally, he elected to not submit statements on his own behalf. 8. The applicant elected not to undergo a separation medical exam. 9. On 5 February 1988, the applicant's immediate commander submitted a formal recommendation for discharge under the provisions of AR 635-200, paragraph 10-3, for the good of the service, with an under other than honorable conditions characterization of service. The commander noted, “his conduct has rendered him triable by court- martial under circumstances which could lead to a bad conduct or dishonorable discharge. Based on his previous record, punishment can be expected to have a minimal rehabilitative effect.” 10. On 5 February 1988, the applicant’s intermediate commander concurred with the recommendation for discharge under the provisions on AR 635-200, paragraph 10-3, for the good of the service, with an under other than honorable conditions characterization of service. 11. On 12 February 1988, the separation authority approved the recommended discharge under the provisions of AR 635-200, paragraph 10-3, for the good of the service, with an under other than honorable conditions characterization of service and directed the applicant be reduced to the rank/grade of Private (PV1)/ E-1. 12. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 11 March 1988, under the provisions of AR 635-200, chapter 10, for the food of the service – in lieu of court-martial, in the rank/grade of PV1/E-1. His service was characterized as under other than honorable conditions and he received a separation code of KFS and a reentry code of 3B, 3C, and 3. He completed 11 months and 1 day of net active service with lost time from 24 June 1987 to 31 January 1988. Additionally, his DD Form 214 does not list any decorations or awards. 13. There is evidence the applicant applied to the Army Discharge Review Board (ADRB) for review of his discharge within that board’s 15-year statute of limitations. A letter, dated 23 May 2003, shows the ADRB determined that he was properly and equitably discharged and his request for a change in the character and/or reason of his discharge was denied. 14. The ABCMR considered the applicant's request to upgrade his under other than honorable conditions characterization of service in ABCMR Docket Number AR2003091540, on 25 March 2004. The Board denied his request, determining the evidence did not demonstrate the existence of a probable error or injustice. 15. Regulatory guidance in effect at the time provided discharges under the provision of Army Regulation 635-200, chapter 10, where voluntary requests from the Soldier to be discharged in lieu of a trial by court-martial. 16. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 17. MEDICAL REVIEW: a. The applicant requests reconsideration of his previous request to upgrade his characterization of service from under other than honorable conditions to under honorable conditions (general). He contends his misconduct was related to PTSD, Other Mental Health issues, and Harassment. 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 into the Regular Army on 4 September 1986; 2) A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against the applicant on 2 February 1988; he was charged with being AWOL from on or about 24 June 1987 to on or about 1 February 1988; 3) On 2 February 1988, the applicant voluntarily requested discharge for the good of the service under AR 635-200, Chapter 10; 4) On 5 February 1988, the applicant's immediate commander submitted a formal recommendation for discharge under the provisions of AR 635-200, paragraph 10-3, for the good of the service, with an under other than honorable conditions characterization of service; 5) The applicant was discharged on 11 March 1988, under the provisions of AR 635-200, chapter 10, for the food of the service – in lieu of court-martial. c. The VA electronic medical record, JLV, ROP, and casefiles were reviewed. The military electronic medical record, AHLTA, was not reviewed as it was not in use during the applicant’s time in service. Included in the applicant’s case file was a Medical Examination for Separation of Option letter dated 1 February 1988, that showed the applicant elected not to undergo a medical separation examination. The military BH- related records were provided for review. A review of JLV was void of any treatment history for the applicant and he does not have a SC disability. No civilian BH-related records were provided for review. d. The applicant requests upgrade of his UOTHC discharge and contends his misconduct was related to PTSD, Other Mental Health issues, and Harassment. A review of the records was void of any BH related diagnosis or treatment for the applicant during service or post-service and he provided no documentation to support his assertions of PTSD, Other Mental Health issues, and Harassment. In absence of documentation supporting his contention, there is insufficient evidence to support the applicant had a condition or experience during his time in service that mitigated his misconduct. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence in the records that the applicant had a condition or experience during his time in service that mitigated his misconduct. However, the applicant contends his misconduct was related to PTSD, Other Mental Health issues, and Harassment, and per Liberal Consideration policy, his contention is sufficient to warrant the Board’s consideration. 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 contends his misconduct was related to PTSD, Other Mental Health issues, and Harassment. 2. Did the condition exist, or experience occur during military service? Yes. Does the condition or experience actually excuse or mitigate the discharge? No. The applicant requests upgrade of his UOTHC discharge and contends his misconduct was related to PTSD, Other Mental Health issues, and Harassment. A review of the records was void of any BH related diagnosis or treatment for the applicant during service or post-service and he provided no documentation to support his assertions of PTSD, Other Mental Health issues, and Harassment. In absence of documentation supporting his contention, there is insufficient evidence to support the applicant had a condition or experience during his time in service that mitigated his misconduct. 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 the applicant voluntarily requested discharge for the good of the service. 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 any BH related diagnosis, post-service achievements, or letters of reference in support of a clemency determination. The Board determined the applicant’s service record exhibits numerous instances of misconduct during his enlistment period for 11 months and 1 day of net service for this period. 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 decisions is unwarranted. 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 AR2003091540 on 25 March 2004. 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provided that a Soldier who committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The discharge request may be submitted after court-martial charges are preferred against the Soldier, or, where required, after referral, until final action by the court-martial convening authority. Commanders will ensure that a Soldier is not coerced into submitting a request for discharge for the good of the service. The Soldier will be given a reasonable time to consult with consulting counsel and to consider the wisdom of submitting such a request for discharge. After receiving counseling, the Soldier may elect to submit a request for discharge for the good of the service. The Soldier will sign a written request, certifying that they were counseled, understood their rights, may receive a discharge under other than honorable conditions, and understood the adverse nature of such a discharge and the possible consequences. A discharge under other than honorable conditions was normally appropriate for a Soldier who is discharged for the good of the service. However, the separation authority was authorized to direct a general discharge certificate if such was merited by the Soldier's overall record during their current enlistment. For Soldiers who had completed entry level status, characterization of service as honorable was not authorized unless the Soldier's record was otherwise so meritorious that any other characterization clearly would be improper. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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. c. A general discharge is a separation from the Army under honorable conditions. When authorized, it is used for a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct or for the good of the service. 3. 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 regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. 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. 4. 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) AR20220011944 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1