IN THE CASE OF: BOARD DATE: 17 August 2022 DOCKET NUMBER: AR20220001953 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. Additionally, he requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement * Orders 044-45 issued by Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, on 13 February 2002 * Certificate of Appreciation, dated 6 April 2002 * Documentation for award of the Army Commendation Medal * DA Form 4187 (Personnel Action), dated 10 May 2004 * Certificate of Training, dated 14 April 2004 * Enlisted Record Brief, dated 11 May 2004 * Service Member Deployment History – Outprocessing Verification, dated 4 February 2005 * Post-service training and accomplishments documents (33 pages) * Statement from his former spouse, dated 24 February 2021 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), 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: a. He suffered from Post-Traumatic Stress Disorder (PTSD) which significantly worsened during his period of service. His PTSD and invisible wounds from combat experiences in Iraq contributed to his misconduct and are the only reasons why he did not retire from the Army. He also feels like he was bullied into signing discharge paperwork by a lieutenant colonel at Fort Campbell, Kentucky. He recalls beginning to ask for help during redeployment processing in Kuwait. He consulted with family members, a chaplain and his immediate supervisors and they told him to be patient because he would be returning home soon. He had to tell people he was suicidal to get referred to a psychiatrist and was finally diagnosed with PTSD. b. His unit placed him on lockdown for two weeks based upon the psychiatrist's findings. He had a second session with the psychiatrist and the findings were the same so, he was confined to the barracks again with two guards outside his door. After a third session with the psychiatrist, he was returned to duty and denied any further sessions. He was also denied leave to return home during a family emergency. His sleeping worsened and he experienced night terrors. He wanted help, but no one in the Army would help him. As a result, he chose to go to a place where he felt stable, secure, and safe, at home with his family. He served our country honorably and would still put on a uniform to this day. He deserves an honorable discharge. 3. The applicant's records show: a. Following a period of service in the Army National Guard, the applicant enlisted in the Regular Army on 29 August 2002, for a period of 3 years. Upon completion of initial entry training, he was assigned to a unit at Fort Campbell, Kentucky. He was promoted to the rank/grade of specialist (SPC)/E-4 effective 12 April 2004. b. On 25 January 2005, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ) for: (1) Violation of Article 86, UCMJ by: * Specification 1: without authority, absenting himself from his organization on or about 25 August 2004 until on or about 29 August 2004 * Specification 2: without authority, absenting himself from his organization on or about 4 September 2004 until on or about 20 January 2005 (2) Violation of Article 134, UCMJ by, as a married man, on or about 14 August 2004, wrongfully have sexual intercourse with a woman not his wife. c. On 26 January 2005, the applicant voluntarily requested he be discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10, in lieu of trial by court-martial. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights, and the basis for voluntarily requesting discharge under the provision of Army Regulation 635- 200, Chapter 10. Although he indicated he would submit statements in his own behalf, there are no such statements in his available record. d. On 31 January 2005, the separation authority approved the applicant's request with issuance of an UOTHC discharge under the provisions of Army Regulation 635- 200, Chapter 10, in lieu of trial by court-martial. He directed the applicant be reduced to the rank/grade of private (PV1)/E-1. e. His service record is void of a mental evaluation or pre-separation medical examination. f. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged accordingly, on 7 February 2005. He was credited with completing 2 years and 17 days of net active service this period. His DD Form 214 contains the following entries in: (1) item 11 (Primary Specialty) – 13F (Fire Support Specialist); (2) item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) – Army Commendation Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal; National Defense Service Medal; Army Service Ribbon; Overseas Service Bar (2nd Award); (3) item 14 (Military Education) – None; (4) item 18 (Remarks) – He did not complete his first full term of service; Service in Kuwait/Iraq from 2 March 2003 until 14 February 2004; (5) item 24 (Character of Service) – UOTHC; (6) item 25 (Separation Authority) – Army Regulation 635-200, Chapter 10; (7) item 26 (Separation Code) – KFS; (8) item 27 (Reentry Code) – 4; and (9) item 28 (Narrative Reason for Separation) – In Lieu of Trial by Court-Martial. 4. His record is void and he provides no evidence showing was diagnosed with PTSD or any other medical condition during or after his period of service. 5. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. On 14 July 2006, the applicant was informed that after careful review of his application and all other available evidence, the ADRB determined that he was properly and equitably discharged. Accordingly, his request for a change in the character and/or reason for his discharge was denied. 6. The applicant provides the following documents which are available in their entirety for the Board's consideration: a. Orders 044-45 issued by Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas on 13 February 2002 which show he was awarded Military Occupational Specialty (MOS) 14M (Man-Portable Air Defense System Crewmember), effective 15 March 2002 (or upon completion of MOS training). b. A Certificate of Appreciation presented to him on 6 April 2002 in recognition of faithful and outstanding service as a member of the unit. c. Documentation for his award of the Army Commendation Medal for meritorious service during combat operations in support of Operation Iraqi Freedom from 18 March 2003 to 31 May 2003. d. Certificate of Training presented to him in recognition of his successful completion of the Money Management Course on 14 April 2004. e. An Enlisted Record Brief, dated 11 May 2004. f. A Service Member Deployment History – Outprocessing Verification, prepared on 4 February 2005, which shows he was deployed to an unspecified location from 3 March 2003 until 2 March 2004 in support of a named operation during a national emergency. g. Documents from various agencies depicting his post-service training and accomplishments (33 pages). h. A statement from his former spouse wherein she appeals to the Board for clemency on behalf of the applicant. She admits he made mistakes, but believes he was a good Soldier. He was deployed to Iraq exactly 3 months after they were married. He excelled while he was there and advanced from E-1 to E-4 while he was there. She was unfaithful while he was deployed, and he found out before he returned home. Dealing with that knowledge in addition to the stress of combat changed him. There were many nights he had night terrors during his sleep. They sought counsel from a chaplain and attended a marriage retreat to save their marriage. One night, during an argument, he left home and met a young lady who is mentioned in his discharge. She believes it was his way of making her feel some of the pain she had caused him. His absence without leave was simply a cry for help when he learned his unit was going to deploy to Iraq again. She feels his discharge should be upgraded if for no reason other than to help him get his life back on track while he copes with PTSD. 7. Army Regulation 635-200 states a chapter 10 is a voluntary discharge request in-lieu of trial by court martial. In doing so, he would have waived his opportunity to appear before a court-martial and risk a felony conviction. A characterization of UOTHC is authorized and normally considered appropriate; however, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service, he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 8. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. a. The applicant desires to have the characterization of his service upgraded due to a service incurred condition of PTSD that resulted in his misconduct. He contends that he was bullied to sign separation paperwork with which he did not agree. His record is void of and he did not provide any evidence showing he was bullied or diagnosed with a behavioral health condition during his period of service. b. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part of mental health conditions, including PTSD. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 9. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 10. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: The applicant’s documentation is void of a behavioral health condition. While liberal consideration was applied, available records do not support the assertion for mitigation. However, if the Board wanted to accept the assertion at face value, PTSD would mitigate AWOL given the nexus between trauma and avoidance. a. The applicant was discharged on 07 February 2005 under AR635-200, Chapter 10, In Lieu of Trial by Court Martial, with an Under Other than Honorable characterization. The applicant served in Kuwait/Iraq from 02 March 2003 to 14 February 2004. The applicant was pending Court Martial charges for two periods of AWOL, 25 to 29 August 2004 and 04 September 2004 to 20 January 2005, and wrongful intercourse with a woman not his wife on 14 August 2004. The applicant is requesting an upgrade to Honorable asserting PTSD led him to go AWOL worsened by denial of emergency leave and denial of further behavioral health treatment after he was released from a second medically directed unit restriction and watch. b. The applicant applied to the ADRB in 2005 requesting an upgrade asserting combat related PTSD. The Board determined the discharge was proper and equitable. c. Due to the period of service, there are no active-duty electronic medical records. Hard copy in-service medical records are not available for review. d. The applicant is not service connected. In October 2006, the applicant attended a primary care appointment and referred to behavioral health; however, he did not show. In 2007, the applicant was seen for wrist pain after he flipped off another vehicle and at a red light, the vehicle passengers came out, grabbed his arm and twisted it. In 2008, the applicant requested orthopedic services for a boxer fracture. e. The applicant submitted a letter from his wife asserting the applicant had PTSD and after learning of another deployment, he went AWOL as he was not emotionally ready to deploy. f. The applicant submitted a 2005 VA Statement of Support of a filed claim asserting an in-service diagnosis of combat related PTSD. g. Kurta Questions (1) Does the applicant have a condition or experience that may excuse or mitigate the discharge? (a) NO. While the applicant asserted PTSD, documentation is void of a diagnosed behavioral health condition. (b) Did the condition exist or experience occur during military service? N/A (2) Does the condition or experience actually excuse or mitigate the discharge? (a) N/A (3) Does the condition or experience outweigh the discharge? (a) N/A BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was 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 the medical review the Board concurred with the advising official finding no documented diagnosed behavioral health conditions to consider with respect to mitigation of his misconduct. However, the Board agreed based on his community service as a firefighter, clemency is warranted with an upgrade to under honorable (general) conditions discharge. Based on this, the Board granted partial relief. 2. 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 X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 7 February 2005 to show in item 24 (Character of Service) Under Honorable (General) Conditions. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. 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, USC, 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. Title 10, USC, 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. 3. Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an UOTHC discharge. b. 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. c. 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. d. When a Soldier is to be discharged UOTHC, the separation authority would direct an immediate reduction to the lowest enlisted grade. 5. 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 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. 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; Traumatic Brain Injury; 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. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220001953 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1