IN THE CASE OF: BOARD DATE: 22 February 2023 DOCKET NUMBER: AR20220003054 APPLICANT REQUESTS: his narrative reason for separation be changed from "In Lieu of Trial by Court-Martial" to an unspecified, presumably more favorable reason. APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 his petition to the Army Discharge Review Board (ADRB) was successful. The ADRB found his discharge was unjust and, as a result, upgraded his characterization of service from "Under Other Than Honorable Conditions (UOTHC)" to "Honorable" and restored his rank. Unfortunately, the narrative reason was left unchanged and having this terminology on his DD Form 214 (Certificate of Release or Discharge from Active Duty) while showing an Honorable discharge has caused confusion for civilian employers and loss of employment opportunities. 3. On 20 January 1999, following a period of honorable service in the Tennessee Army National Guard, the applicant enlisted in the Regular Army for a period of 3 years in the rank/grade of specialist (SPC)/E-4. He was assigned to a unit located at Fort Campbell, KY. 4. The applicant was reported as absent without Leave (AWOL) on 6 April 1999 and was dropped from the rolls and reported as a deserter on 7 May 1999. 5. On 25 July 1999, the applicant surrendered to military authorities at Fort Knox, KY, and returned to military control. 6. His DD Form 458 (Charge Sheet) shows charges were preferred against the applicant on 2 August 1999, for violation of the Uniform Code of Military Justice (UCMJ), by being AWOL from on or about 6 April 1999 until on or about 25 July 1999. 7. On 2 August 1999, the applicant voluntarily requested discharge 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; 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. He elected not to submit a statement in his own behalf. 8. On 20 April 2000, the applicant's immediate commander recommended approval of his request for discharge with a discharge characterization of UOTHC. 9. On 29 May 2000, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial, with his service characterized as UOTHC. He further directed the applicant be reduced to the lowest enlisted pay grade. 10. Orders show the applicant was reduced from the rank/grade of SPC/E-4 to private/E-1 on 29 May 2000. 11. Orders and the applicant's DD Form 214 confirm he was discharged on 15 September 2000, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. He was credited with completing 1 year, 4 months, and 6 days of net active service this period with lost time from 6 April 1999 to 24 July 1999. 12. The available record is void of and he did not provide documentation of a behavioral health condition during his period of service. 13. 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. 14. On 23 January 2005, the applicant petitioned the ADRB for an upgrade of his service characterization based upon his contention that he suffered from post-traumatic stress disorder (PTSD). He incurred PTSD following the death of a close friend in a helicopter accident. The applicant and his counsel appeared in person before the ADRB in Washington, DC, on 6 June 2005. a. On 10 June 2005, the applicant was notified that the ADRB had reviewed his case and determined relief was warranted. He was provided a copy of the ADRB Office of the Secretary of the Army (OSA) Form 172 (Case Report and Directive) and advised he would receive the appropriate documentation of the correction in the mail. The OSA Form 172 shows the ADRB voted unanimously to upgrade his characterization of service and to leave the reason for his separation unchanged. b. On 29 July 2005, the applicant was notified that after reviewing the findings and conclusions of the ADRB, the Secretary of the Army directed he be informed that his characterization had been changed to Honorable. The applicant was provided: * a copy of his voided original DD Form 214 * a corrected DD Form 214 depicting his character of service as "Honorable" and the narrative reason for separation as "In Lieu of Trial by Court-Martial" * an Honorable Discharge Certificate 15. 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. 16. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting narrative reason for separation be changed from in lieu of trial by court martial to an unspecified, more favorable reason. 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) Applicant states his petition to ADRB was successful and his characterization was changed from UOTHC to Honorable and restored his rank. However, the narrative reason was left unchanged, with his DD214 showing both an honorable discharge and the narrative reason leading to confusion and negative impact on potential employment. (2) He enlisted in the RA on 20 January 1999 following honorable service in the TN ARNG. (3) He was reported AWOL on 6 April 1999 and DFR on 7 May 1999. He returned to military control on 25 July 1999. (4) Charge sheet shows on 2 August 1999, he was charged with violation of UCMH by being AWOL for the above time period. (5) DD214 confirms he was discharged on 15 September 2000 under AR 635-200 Chapter 10 in lieu of trial by court-martial. (6) He did not provide documentation of a behavioral health condition during his period of service. (7) In terms of prior ADRB consideration (6 June 2005), he asserted PTSD due to death of a close friend in a helicopter accident. Records indicate ADRB voted unanimously to upgrade characterization and to leave the reason for separation unchanged. c. Supporting Documents All supporting documents reviewed. Lack of citation or discussion in this section should not be interpreted as lack of consideration. The advisor stipulates an established diagnosis of PTSD based on prior evidence and decision by the ADRB. d. AHLTA The Army electronic medical record, AHLTA, was not reviewed; it was not an existing EMR at the applicant’s time of service. e. JLV Available VA records were reviewed via JLV. Records indicate applicant has a service connection for chronic adjustment disorder (50%). His VA records are extensive and will not be fully summarized. Compensation and pension evaluation dated 11 June 2014 resulted in a diagnosis of adjustment disorder with mixed anxiety and depressed mood, prolonged. Evaluation references prior PTSD diagnosis in 1999 related to a helicopter crash which he was nearby/on the ground and following which he was part of the search and recovery effort. The event reportedly occurred while engaged with a drug task force during his reserve component service. “His good friend, the pilot, Captain Harvey, lay dead in the cockpit, partially decapitated.” His most recent VA mental health contact appears to be 16 December 2022 with a diagnosis of PTSD. ? f. Other Query of HAIMS did not return any documents for this applicant. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The ADRB appears to have previously acknowledged the presence of PTSD and he is currently service connected for chronic adjustment disorder (50%). 2. Did the condition exist or experience occur during military service? Yes. The applicant’s assertion is supported by his service connection for chronic adjustment disorder. 3. Does the condition or experience actually excuse or mitigate the discharge? Yes. The ADRB has previously conceded a mental health concern and upgraded discharge to honorable. However, the separation code/narrative reason remained unchanged (KFS/in lieu of trial by court-martial). Given the circumstances, it is appropriate to consider change in separation code to JKN with associated change in narrative reason to misconduct, minor. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that 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. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding it is appropriate to consider change in separation code to JKN with associated change in narrative reason to Secretarial Authority. Evidence shows the applicant was granted relief previously by the Army Discharge Review Board with an upgrade to Honorable. The Board determined the applicant’s separation code and narrative reason were not corrected to align with his discharge upgrade. Based on this, the Board granted relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding in: * Item 26 (Separation Code) JKN * item 28 (Narrative Reason for Separation): Secretarial Authority. 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 three 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 three-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 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. 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 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. 5. 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. 6. 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) AR20220003054 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1