IN THE CASE OF: BOARD DATE: 19 July 2023 DOCKET NUMBER: AR20220012134 APPLICANT REQUESTS: a. correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show: * an upgrade to his characterization of service from under other than honorable conditions to honorable * restoration of his rank/grade private (PV1)/E-1 to staff sergeant (SSG)/E-6 * an upgrade of his separation code from KFS to KNL * an upgrade of his reentry code from "4" to "1" b. a personal appearance before the board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 8 September 2022 * self-authored statement, undated * two DA Forms 1059 (Service School Academic Evaluation Report (AER), 16 March 2001 and 31 March 2001 * two DA Forms 2166-7 (Non-Commissioned Officer Evaluation Report (NCOER)), covering December 2000 thru November 2001 and from November 2002 thru October 2003 * DA Form 4836 (Oath of Extension of Enlistment of Reenlistment), 5 March 2002 * DA Form 87 (Certificate of Training), Master Driver, 28 March 2003 * DA Form 5984-E (Operator's Permit), 10 October 2003 * Orders 324-100, Headquarters, Oregon National Guard, 20 November 2003 * DD Form 458 (Charge Sheet), 24 November 2003 * Memorandum, Subject: Request for Discharge in Lieu of Trial by Court Martial, 4 February 2004 * Memorandum, Subject: Decision on Request for Discharge in Lieu of Trial by Court Martial, 14 February 2004 * Memorandum, Subject: SSG Applicant, 82nd Rear Operations Command, 27 February 2004 * DD Form 214, 2 March 2004 * Student Transcript, Northwest Laborers and Training Fund, 26 January 2010 * 4 letters from the Department of Veteran Affairs (VA), from 4 May 2010 to 4 March 2022 * Certificate of Marriage, 23 December 2011 * letter of support, Laborers' International Union of North America, 2 September 2014 * Memorandum, Subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder (Hagel Memorandum), 3 September 2014 * Memorandum, Subject: Consideration of Discharge Upgrade Request Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records by Veterans Claiming Post-Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI), 24 February 2016 * Memorandum, Subject: Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment, (Kurta Memorandum), 25 August 2017 * Certificate of Live Birth, 19 January 2018 * Memorandum, Subject: Guidance to Military Discharge Review Boards and Boards of Correction of Military/ Naval Records Regarding Equity, Injustice, or Clemency Determinations, (Wilkie Memorandum), 25 July 2018 * Oregon Laborers-Employers Pension Trust, Statement of Account, through 31 December 2021 * VA rating decision, 25 August 2022 * 65 pages from VA medical records 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 48 years old and is married to his third wife of 11 years; they have 2 children ages 4 and almost 2. He is a former Staff Sergeant (SSG) in the Army National Guard (ARNG). He first enlisted into the ARNG on or about 5 February 2001; his military occupational specialty (MOS) was 11M (Mechanized Infantry). He originally enlisted into the Washington Army National Guard (WAARNG) and later transferred to the Oregon Army National Guard (ORARNG). He was on his second enlistment when his unit was activated on or about 7 February 2003. He does not recall the exact time they deployed to Kuwait or when they moved to Iraq. a. The unit he was with was the 82nd Rear Operations Center (ROC). A rear operations command attached to I Corps out of Fort Lewis, WA. He was assigned as a liaison Sergeant (SGT). The 82nd ROC had a unique make up with around 50 members evenly split between officers and enlisted. The company commander was Colonel (COL)/O-6. b. Around March of 2003, he reminded his chain of command about his EAS (end of active service). Within a couple of days, they told him he could not get out due to a "stop loss." To this day he does not know what a "stop loss" is, he has only heard the term; he was never show anything about it but was told it existed. He was then presented with the option of reenlistment. He did not want to reenlist but was told he really had no choice because he could not get out anyway; he reluctantly reenlisted. c. After reenlisting things dramatically changed for him regarding how he was treated within the unit. He questioned the command a couple times about being transferred and when they might go home. He was always told, "when we are done." The real start of his problems came when he "requested mast." The command had no clue what that was, so he explained to them that is the process of speaking to the commanding officers reporting senior when the commanding officer is unable to address an issue or the problem was with said named commanding officer. He was told there was no way he was going to speak to the area Commanding General (CG). He asked if he had a right to speak to the CG and was told, "No." (NOTE: In the Navy and Marine Corps, "Request Mast" is a formal process that includes the right of the service member to directly communicate grievances to the Commanding Officer and the requirement of the Commanding Officer to consider the matter and personally respond to the member requesting Mast.) d. The only formal Army school he attended was for MOS 11M, where he was recognized as the "Distinguished Honor" graduate and the "Train the Trainer" course. The NCOERs he received prior to his assignment to this command were outstanding and without flaw. However, because he had not been to any other formal Army school, he did not know the rules or how to do things in accordance with the Army's rules. e. He was sent to see the mental health doctors. He does not know what the doctors actually said to the command but he was told that he should not have access to weapons and classified materials. Their base was hit by rocket and mortar attacks nightly. During the day he would go outside the wire and see what the Improvised Explosive Devices (IED) did to their troops and weapons of war. Without a weapon he felt defenseless in a place he had no control over and never wanted to be after his contract was up. f. The unit he was with had many members, to include officers, who would run down to where the rockets and mortars were hitting and exploding at night to get pictures. After one time of feeling the concussion from an IED, Rocket-propelled Grenade (RPG), mortar, grenade, bomb, artillery, or anything else you never need to experience that again. The smell of burnt flesh as service members and the enemy are burned, sometimes alive, weighs on you. The sounds of stuff whistling over your head or the buzz and the snap of rounds flying by reminds you that this is no joke. While many in this unit did not experience that, he could still never understand why they wanted pictures of the destructiveness of war. g. His NCOER from this unit shows the complete lack of respect his unit had towards him the complete lack of respect he had towards the command. The NCOER shows how bad he was, yet they wanted him to/made him reenlist. The NCOER states that the problems could be corrected and overcome, yet he was given no help except to see mental health. h. He knows he was not perfect and he was dealing with some mental health issues. ln November instead of helping him as he requested, he feels his chain of command failed him and did everything they could to get rid of him. He can see from the charge sheet that between 8-20 personnel in the command stated he did things. All this happened in a two-week period; he does not recall ever seeing the charge sheet. However, he does recall seeing and signing the letter [request for discharge in lieu of trial by court-martial] dated 4 February 2004 "AETV-JA-BLD-TDS" [office symbol for the U.S Army Trial Defense Service, Central Iraq Field Office]. He wished he had a better opportunity to review it and that he could have seen an attorney more than once. He feels, after reading the statement and seeing the charge sheet, that the information therein is not correct. i. He has the following issues with the memorandum requesting discharge: (1) According to the Manual for Courts-Martial (2019 Edition) none of the charges would have warranted a discharge. There are not even four charges listed for violation of article 117, instead, there are only three. (2) The memorandum states he is admitting guilt to one or more of the charges against him but does not explain which one or ones. The memorandum also states he "may" be discharged under other than honorable conditions and reduced to "(Private E1)," however, it was his understanding that this was not going to happen because of the seriousness of the charges. Finally, it lists his rank as SGT(E-5) when he was an SSG, as stated on the charge sheet. j. He never saw the memorandum approving his separation until he got copies of his service record on 3 September 2022. This document was not followed because he was not discharged within 10 working days; therefore, he should have been allowed to have this process reevaluated. k. He was sent back to Fort Lewis, WA, where he did not have an opportunity to speak to anyone from legal, let alone an attorney, where he could have exercised his right to withdrawal the request. l. He lists the charges against him and provides the following responses: (1) Article 91 - SSG was the same rank as him and not a superior noncommissioned officer. SSG was an admin clerk who was also the COL's driver. (2) Article 117 - While he may have said these things, they were just in response to what was happening around him, such as mental health saying he should not have a weapon anymore or the blatant disregard for Soldiers' own lives as they ran towards the nightly impacts on base with their cameras to get pictures. It was sickening, chilling, and appalling that they would do this while the Soldiers on the outside were losing their lives. He incorrectly thought and poorly worded that if someone from that unit was killed then they would understand that this was not a game. Even though at times he wished it was him or that he could get wounded bad enough to get out of there. (3) Article 128 - He does not recall this ever happening. The charge does not state that he said anything to the Soldier or that he made a threat, which is why he does not believe this ever happened. m. The DD Form 214 he enclosed shows his service as honorable, but the VA and Army says that is not correct after several years of showing it was and issuing him a DD 214 stating otherwise. He would like this issue to be resolved. The copy of the DD Form 214 he provided is the only copy he has and he has not seen the one that states otherwise. n. He believes the relief and corrections he is seeking should be made in order to correct an injustice and as an act of fairness. He does not think that if these same issues happed today, they would have received as harsh a punishment. He also believes this punishment was unfair just do to the fact it happened in a combat zone and not at peace time. He believes he had a TBI; he suffers from PTSD as well as an ongoing battle with chronic depression and social anxiety. These issues are well documented in his medical records. These issues still affect him today and he is trying to get the proper help for them. He also enclosed copies of the Hagel, Carson, Kutra, and Wilkie memoranda, which he feels relate to his case and would warrant a review. His medical issues should also serve as mitigating factors in his behavior. There will never be an excuse for his behavior, but his medical conditions most undoubtedly played a significant role in his situation. At the time of his discharge these factors were never considered. 3. The applicant's record contains a DD Form 214 showing he previously served on active duty in the United States Marine Corps from 12 June 1991 to 27 October 1997; a period of 6 years, 4 months, and 16 days. He served as a Basic Avionics Marine for 8 months and as a Rifleman for 5 years and 9 months. This form also shows: a. He was discharged under the provisions of Marine Corps Separation Manual, paragraph 6419, by reason of conduct triable by court-martial, in the rank/grade of Sergeant/E-5, his service was characterized as under other than honorable conditions and was issued Separation Code KFS1 and Reentry Code 4. b. He was credited with honorable service from 12 June 1991 to 26 February 1997. 4. The applicant enlisted in the WAARNG on 5 February 2001 for a period of 1 year and 17 weeks in the rank/grade of SGT/E-5. His record also indicates he executed an interstate transfer to the ORARNG; however the date of the transfer is not known. 5. He provides - a. two AERs showing he attended and completed phase I and phase II of the 11M course from 10 March 2001 through 21 March 2001; he was named the "Distinguished Honor" graduate during Phase I. b. an NCOER for the rated period December 2000 to November 2001, which shows he successfully met the standard in all rated areas, he was fully capable, and he was rated as Successful - 2 for overall performance and potential. 6. He provides an oath of extension or reenlistment, dated 5 March 2002, which shows he extended his reenlistment by a period of 1 year. [Note: His extension incorrectly shows the date of his current enlistment as 9 May 2001 (should show 5 February 2001) but correctly shows his original Expiration Term of Service (ETS) as 5 June 2002.] Having executed his extension, his new ETS date was correctly reflected on this form as 5 June 2003. 7. His record shows he was promoted to the rank/grade of SSG/ E-6 on 7 February 2003. 7. Orders 037-558, published by the ORARNG on 6 February 2003 ordered him to Active duty for the period 7 February 2003 to 6 February 2004. The record confirms he did enter onto active duty on 7 February 2003. 8. He provides a Certificate of training showing he successfully completed the Master Driver course from 24-28 March 2003, at Fort Lewis, WA and he was later issued a U.S. Army Motor Vehicle Operator's Identification Card. 9. The record shows he arrived in Iraq on 29 April 2003. 10. His NCOER for the rated period November 2002 thru October 2003. The rating chain signed the evaluation on 1 March 2004, but the applicant did not sign, as he was "not available for signature." Additionally, this NCOER was not forwarded to the applicant until 17 March 2004, which was after his discharge. His NCOER contains the following entries or information: a. Part IV - Values/NCO Responsibilities (1) The following was marked "No" by his rater: * places dedication and commitment to the goals and missions of the army and the nation above personal welfare * is committed to and shows a sense of pride in the unit - works as a member of the team * is disciplined and obedient to the spirit and letter of a lawful order * is honest and truthful in word and dead * maintains a high standard of personal conduct on and off duty * has the courage of convictions and ability to overcome fear - stands up for and does what is right * supports EO/EEO (2) His rater included the following bullet comments: * Does not treat fellow soldiers in the unit with respect * Personal conduct and actions are far below the standards of Army Values * Failure to fulfill obligations to the unit and fellow soldiers (3) His rated made the following block marks and bullet comments: (a) Physical Fitness and Military Bearing - Needs Some Improvement, "Military Bearing is far below standards of an NCO." (b) Leadership - Needs Much Improvement - * "Disrespectful to fellow NCO's and assigned supervisors." * "Personal conduct unbecoming of an NCO." * "Provides a poor example of an NCO to subordinate Soldiers." (c) Training - Needs Some Improvement - * "Refusal to teach a class when directed at Camp Virginia, Kuwait." * "Failure to focus on overall unit mission regardless of MOS training." * "Has ability but fails initiative to follow instructions and complete assigned tasks." b. Part V - Overall Performance and Potential (1) His rater marked the block "Marginal. (2) His senior rater marked the 5-Poor blocks for both overall performance and for overall potential and included the following bullet comments: * "Personal leadership and respect for his leaders needs great improvement." * "Has not participated in unit efforts to train and mentor each other." * "Problem areas listed above can be corrected and overcome with extensive personal effort and command guidance." 11. Orders 037-558, published by the ORARNG on 20 November 2003 amended Orders 037-558, dated 6 February 2003 to show - * As reads - Period of Active Duty: 7 February 2003 to 6 February 2004 * How changed - Period of Active Duty: 7 February 2003 to 27 June 2004 12. On 24 November 2003, the following court-martial charges were preferred against the applicant: a. Charge 1: Article 91 (Insubordinate conduct) (1) Specification: the applicant did at or near Life Support Area (LSA) Anaconda, Iraq, on or about 13 November 2003, was disrespectful in language and deportment toward SSG Jxxxxxx, an NCO, then known to be a superior NCO, by staring at SSG Jxxxxxx and saying to him "I don’t trust you," or words to that effect. b. Charge 2: Article 117 (Provoking speeches or gestures) (1) Specification 1: the applicant did at or near LSA Anaconda, Iraq, on or about 8 November 2003, wrongfully use provoking words, to wit: "Your lucky the unit took my weapon. I don't know what I would do if I had it," or words to that effect, towards Master Sergeant (MSG) Lxxxxx. (2) Specification 2: the applicant did at or near LSA Anaconda, Iraq, on or about 15 November 2003, wrongfully use provoking words, to wit: "Would it be wrong to want terrorists to blow up this base?" and "I would like to make a napalm bomb and explode it over certain locations so that it would stick to and kill certain people," or words to that effect towards Specialist (SPC). (3) Specification 3: the applicant did at or near LSA Anaconda, Iraq, on or about 16 November 2003, wrongfully use provoking words, to wit: "I am glad that more American soldiers were killed," or words to that effect, towards SSG Jxxxxxx. c. Charge 3: Article 128 (Assault), Specification: the applicant did at or near LSA Anaconda, Iraq, on or about 20 November 2003, commit and assault on SPC by pointing at him with a dangerous weapon, a knife. 13. A memorandum dated 4 February 2004, on letterhead from the U.S Army Trial Defense Service, Central Iraq Field Office (Office Symbol - AETV-JA-BLD-TDS), Subject: Request for Discharge in Lieu of Trail by Court-Martial [SGT Applicant], which was signed by the applicant and Defense counsel reads: ...I SGT [Applicant]... voluntarily request discharge in lieu of trial by court-martial IAW... [Army Regulation] 635-200 [Active Duty Enlisted Administrative Separations], Chapter 10. I understand that I may request discharge in lieu of trial by court-martial because of the following charges, which have been preferred against me under the Uniform Code of Military Justice, each of which authorizes the imposition of a bad conduct or dishonorable discharge: Article 91, Article 117 x 4, Article 128. ...I am making this request of my own free will and have not been subjected to any coercion whatsoever by any person. I have been advised of the implications that are attached to it. By submitting this request for discharge, acknowledge that I understand the element of the offense(s) charged, and I am guilty of (one or more of) the charge(s) against me or of (a) lesser included offense(s) therein contained, which also authorize the imposition of a bad conduct or dishonorable discharge. Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service. ...Prior to completing this form, I was afforded the opportunity to consult with appointed Defense Counsel for consultation. I have consulted with counsel for consultation who has fully advised me of the nature of my rights under the Uniform Code of Military Justice, the elements of the offenses with which I am charged, any relevant lesser included offenses thereto, and the facts that must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; the possible defenses that appear to be available at this time; and the maximum permissible punishment if found guilty. Although he has furnished me legal advice, this decision is my own. ...I understand that if my request for discharge is accepted, I may be discharged under conditions other than honorable. I have been advised and understand the possible effects of an Under Other Than Honorable Conditions Discharge and that as a result of the issuance of such a discharge I will be deprived of many or all Army benefits, that I may be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that I may be deprived of my rights and benefits as a veteran under both Federal and State law. I also understand that I may expect to encounter substantial prejudice in civilian life because of an Under Other Than Honorable Conditions Discharge... ...I understand that once my request for discharge is submitted, it may be withdrawn only with consent of the commander exercising General Court-Martial Authority or without that Commander's consent, in the event trial results in an acquittal or the sentence does not include a punitive discharge even though one could have been adjudged by the Court... ...I have been advised that I may submit any statements I desire in my own behalf, which will accompany my request for discharge. Statements in my own behalf are not submitted with this request...I hereby acknowledge receipt of a copy of this request for discharge. Having been advised by me of... The basis for his contemplated trial by court-martial and 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 including but not limited to the reduction to the lowest enlisted grade (Private E1) by operation of law and the loss of benefits administered by both the Army and other Federal agencies; and ...The procedures and rights available to him; ...SGT [Applicant], personally made the choices indicated in the foregoing request for discharge in lieu of trial by court- martial. 14. On 14 February 2004 (Saturday), the separation approval authority (Office Symbol AFZF-CG) approved the applicant's request for discharge in lieu of trial by court martial under the provisions of AR 635-200, chapter 10. He directed the applicant to be reduced to rank/grade of Private (PV1)/E-1 and be issued an under other than honorable conditions characterization of service. This memorandum also states, "You will be separated from the Army no later than ten (10) working days from the dated of this memorandum [27 February 2004]." 15. The applicant's record contains a DD Form 214 which shows he was discharged on 2 March 2004 (12 working days after the issuance of the aforementioned memorandum), under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, in the rank/grade of PV1/E-1, with an under other than honorable conditions character of service, a the Separation Code KFS and the Reentry Code 4. He completed 1 years and 26 days of net active service this period. Neither the applicant nor the authorized official signed The DD Form 214 of record. Additionally, his DD Form 214 list the following decorations or awards. * Navy Achievement Medal * Meritorious Unit Commendation * Marine Corps Good Conduct Medal (2nd award) * National Defense Service Medal (2nd award) * Armed Forces Reserve Medal with "M" device * Overseas service bar * Sea Service Deployment Ribbon (2nd award) 16. The applicant's provides a copy (Member-4) of his DD Form 214. This form contains the same general information as the record copy, with the following exceptions: a. The characterization of service is honorable. b. Both the applicant and the authorized official signed the form. c. There is a stamp signed and dated by a Veterans Service Officer on 23 July 2018, which certifies she completed the VA-prescribed training on certification of evidence for proof of service and this is a true and exact copy of either an original document of a copy issued by the service department or custodian of records. 17. There is no indication the applicant applied to the Army Discharge Review Board for review of his discharge within that board’s 15-year statute of limitations. 18. He provides: a. the following correspondence and personal documents which was not previously addressed: * Birth certificate * Marriage certificate * Student transcripts * Benefit summary from employer b. A supporting statement from Mr. from Laborers' International Union of North America, wherein he states the applicant is a member of Laborers' Local 296 and in good standing. He has been a member since April 2001 and has a firm commitment to being one of their best members. He takes every job with no complaints and does every job with fortitude and wherewithal. He states the applicant would be a great asset to any company. c. Three military memorandums, from September 2014 to August 2017, published by the Office of the Secretary Defense, providing guidance to Military Discharge Review Boards pertaining to requests for modification of discharges from Veterans due to mental health conditions, PTSD, and TBI (letters are available for the board to read in the supporting documents file). d. Four (4) letters from the VA and a VA rating decision, dated from 4 May 2010 to 22 August 2022, showing he has a service-connected disability rating of 70% for rhinitis, tinnitus, and generalized anxiety (treatment purposes only). The VA did not grant a service connection disability for generalized anxiety as depression, for the period of service between 7 February 2003 to 2 March 2004, because the applicant's service was characterized as other than honorable. e. 65 pages from his VA medical file, from 12 April 2022 to 29 August 2022, showing he underwent multiple health exams and reported having chronic fatigue, sleep apnea, no energy, depression, and anxiety. On 15 July 2022, he was screened for anxiety, depression, alcohol use, and PTSD. The screening showed the applicant had moderately severe symptoms of depression, moderate symptoms of anxiety, no issues with alcohol, and PTSD results came back negative. On 29 August 2022, the applicant was discharged from his mental health treatment and referred to a higher level of care for mental health. 19. The pertinent Army regulation 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. 20. The applicant provided argument or evidence the Board should consider in accordance with the published equity, injustice, or clemency determination guidance. 21. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting numerous changes to his DD 214. First, he is requesting an upgrade of his under other than honorable conditions discharge. Second, he requests restoration of rank/grade from (PV1)/E-1 to staff sergeant (SSG)/E-6. Third, he would like an upgrade of his separation code from KFS to KNL and his reentry code from “4” to “1”. He contends he had a traumatic brain injury (TBI) and PTSD that mitigates 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 previously served on active duty in the United States Marine Corps from 12 June 1991 to 27 October 1997. He was discharged by reason of conduct triable by court-martial in the rank/grade of Sergeant/E-5. His service was characterized as under other than honorable conditions and was issued Separation Code KFS1 and Reentry Code 4; 2) The applicant enlisted in the WAARNG on 5 February 2001 for a period of 1 year and 17 weeks in the rank/grade of SGT/E-5. His record also indicates he executed an interstate transfer to the ORARNG; 3) The applicant arrived in Iraq on 29 April 2003; 3) On 24 November 2003, court-martial charges were preferred against the applicant for insubordinate conduct, provoking speeches or gestures, and assault; 4) A memorandum dated 4 February 2004 was signed by the applicant and his Defense counsel that stated the applicant voluntarily request discharge in lieu of trial by court- martial. 5) The applicant's record contains a DD Form 214 which shows he was discharged on 2 March 2004, Chapter 10 with an under other than honorable characterization of service in the rank/grade of PV1/E-1. The Separation Code was KFS and the Reentry Code 4. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. Th VA’s Joint Legacy Viewer (JLV) and the applicant’s personal statement were also examined. d. The applicant asserts he was experiencing PTSD and a TBI, while on active service, and his misconduct should be mitigated because these conditions. The applicant was deployed to an active combat environment in 2003. Per the applicant’s report, he was identified as being in “stop loss” status, and he elected to reenlist at that time. He reported becoming distressed about not being informed when the date of redeployment was scheduled for his unit. Per his report, he was sent to behavioral health services. There is no available record of his behavioral health evaluation or treatment due to the time of the applicant’s service and the availability of medical records at that time. However, per the applicant’s report, his was recommended to not be allowed access to weapons or classified materials. This recommendation was also discussed in the applicant’s response to his charges. Therefore, there is sufficient evidence the applicant was determined to be at significant risk for harm to others or himself while serving in an austere combat environment. A review of JLV provided evidence the applicant has been seen by a VA behavioral health treatment for mental health conditions. He was awarded service-connected disability for PTSD on 06 April 2023, but there is insufficient evidence he has been diagnosed or treated for a service- connected TBI. 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 mental health condition 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 contends he was experiencing symptoms of PTSD and a TBI. There is sufficient evidence the applicant has been diagnosed with PTSD related to his combat experiences. There is insufficient evidence the applicant has been diagnosed with a TBI during his active service or afterwards. (2) Did the condition exist or experience occur during military service? Yes, the applicant contends he was experiencing symptoms of PTSD and a TBI while on active service and deployed to Iraq. There is sufficient evidence the applicant has been diagnosed with service-connected PTSD related to his combat experiences. There is insufficient evidence the applicant has been diagnosed with a TBI during his active service or afterwards. (3) Does the condition or experience actually excuse or mitigate the discharge? No, there is sufficient evidence that the applicant has been diagnosed with service- connected PTSD related to his experiences in combat. However, there is insufficient evidence to support he experienced a TBI and residual symptoms of this type of injury. The applicant’s misconduct of insubordinate conduct, threating behavior and communication, and assault are not a natural sequalae to PTSD. The applicant was determined to be a significant threat of harm to himself or other service members, while deployed to combat environment. This was evident through the recommendation to remove his access to weapons, the applicant’s charges, and the information presented in the applicant’s personal statement. There is sufficient evidence the applicant was able to determine the difference between right and wrong and act in accordance with the right. Therefore, an upgrade of his discharge status and reinstatement of his rank is not recommend at this time. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, 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. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. The Board found insufficient evidence of in-service mitigating factors for the serious misconduct to weigh a clemency determination. The Board agreed the applicant’s record is void any available record of his behavioral health evaluation or treatment due to the time of the applicant’s service and the availability of medical records at that time. 2. However, the Board noted the applicant was recommended to not be allowed access to weapons or classified materials. This recommendation was also discussed in the applicant’s response to his charges. Although, there is sufficient evidence the applicant was determined to be at significant risk for harm to others or himself while serving in an austere combat environment. The Board determined based on liberal consideration, the evidence provided was insufficient to support relief. Furthermore, the Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, for restoration of his rank/grade private (PV1)/E-1 to staff sergeant (SSG)/E-6, upgrade of his separation code from KFS to KNL, upgrade of his reentry code from "4" to "1" nor an upgrade of the under other than honorable conditions (UOTHC) discharge to an honorable discharge. Therefore, the Board 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. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a. states 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. b. Paragraph 3-7b. states 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 states, a soldier who has committed an offense or offenses, the punishment for which under the UCMJ and the Manual for Courts-Martial, 2002 (MCM 2002), includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial. (1) Commanders will ensure that a soldier is not coerced into submitting a request for discharge in lieu of trial by court-martial. The soldier will be given a reasonable time (not less than 72 hours) to consult with consulting counsel and to consider the wisdom of submitting such a request for discharge. (2) Consulting counsel will advise the soldier concerning: the elements of the offense/s charged; the burden of proof; possible defenses and possible punishments; the requirements of volunteerism; type of discharge normally given under the provisions of this chapter; the rights regarding the withdrawal of the soldier’s request; the loss of Veterans’ benefits; and prejudice in civilian life based upon the characterization of discharge. Consulting counsel may advise the soldier regarding the merits of this separation action and the offense pending against the soldier. The soldier also must be advised that pursuant to a delegation of authority, a request for discharge in lieu of trial by court-martial may be approved by the commander exercising special court-martial convening authority, but the authority to disapprove a request for discharge in lieu of trial by court-martial may not be delegated. (3) After receiving counseling, the soldier may elect to submit a request for discharge in lieu of trial by court-martial. The soldier will sign a written request, certifying that he/she has been counseled, understands his/her rights; may receive a discharge under other than honorable conditions; and understands the adverse nature of such a discharge and the possible consequences. The soldier’s written request will also include an acknowledgment that he/she understands the elements of the offense/s charged and is guilty of the charge/s or of a lesser included offense/s therein contained which also authorizes the imposition of a punitive discharge. (4) A discharge under other than honorable conditions normally is 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. 3. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD code to be entered on the DD Form 214. a. It identifies SPD code "KFS" an RE code of "4" as the appropriate codes to assign enlisted Soldiers who are administratively discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court martial. b. SPD code "KNL" was not nor is it currently listed as an available separation code. c. The SPD/RE code cross reference table shows: * RE Code 1 - eligible to reenter military service without a waiver * RE Code 3 - requires a waiver to reenter military service * RE Code 4 - not eligible to reenter military service 4. 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. 5. On 24 February 2016, the Acting Principal Deputy Under Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to waive the imposition of the statute of limitation for service members requesting discharge upgrades related to PTSD or TBI. Additionally, cases previously considered by either the DRBs, BCMRS, or BCNR without the benefit of the application of the Supplemental Guidance, shall be, upon petition, granted de novo review utilizing the Supplemental Guidance. 6. 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. 7. 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 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, 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. 8. 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. 9. Army Regulation 15-185, paragraph 2-11 states applicants do not have the right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220012134 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1