IN THE CASE OF: BOARD DATE: 17 February 2023 DOCKET NUMBER: AR20220003133 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement 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, in effect, his discharge should be upgraded, and he should be eligible for benefits from the Department of Veterans Affairs (DVA) due to him sustaining an eye injury in Iraq. a. In 2005, during Operation Iraqi Freedom (OIF), he was medically evacuated from Iraq to Germany and then further to Walter Reed Army Medical Center, Washington, DC. In late 2006, he was transferred to Dwight D. Eisenhower Army Medical Center, Fort Gordon, GA, for a couple of months and then returned home to where he was placed on convalescent leave. b. His eyesight returned for a period of time and he received orders to return to Iraq. He was to report to Camp Shelby, MS, for pre-deployment processing, but was unable to because Hurricane Katrina was coming inland, and the Federal Emergency Management Agency stopped all incoming traffic. c. As a result, he was turned around and sent to the armory in Knoxville, TN, for duty with the Headquarters, 278th Armored Cavalry Regiment. He reported to the commander and explained his situation. The commander said he would try to contact the applicant's commander in Iraq. d. Evidently there was a miscommunication that led to him being reported as absent without leave (AWOL) and a federal warrant was issued for his arrest. He was arrested in and spent approximately 10 days in jail before being transported to and returned to military control. Next, he was transferred to Fort Knox, KY, where he was discharged UOTHC. e. He has been told his vision will never return due to injuries he suffered in Iraq. He also suffers from post-traumatic stress disorder (PTSD) and other illnesses. He needs his discharge to be upgraded to honorable so he can receive DVA benefits. He is struggling financially and has to rely on his children and friends to take care of him. He has communicated with his Congressman and given him permission to speak on his behalf. 3. On 17 March 1999, the applicant enlisted in the Army National Guard (ARNG) for a period of 8 years. 4. A DA Form 2173 (Statement of Medical Examination and Duty Status) shows on 2 February 2002, while the applicant was training with his unit in Smyrna, TN, he woke up with his right eye swollen and had yellow mucus in his eye. It was diagnosed as "pink eye" and determined to be temporary in nature. An informal Line of Duty (LOD) investigation determined this illness was incurred in the LOD. 5. The applicant was ordered to active duty as a member of his Reserve Component unit for a period not to exceed 545 days in support of contingency OIF. He was to report to his unit on 12 November 2004 and to the mobilization station at Camp Shelby, MS, on 14 November 2004. 6. Orders 352-19, issued by Mobilization Center Shelby, Camp Shelby, MS on 17 December 2004, show the applicant was deployed on a temporary change of station for deployment in support of OIF for a period not to exceed 365 days with a proceed date of 19 December 2004. 7. On 29 March 2005, while at forward Operating Base Cobra, Iraq, the applicant reenlisted in the ARNG for a period of 6 years in return for receiving a $15,000.00 lump sum bonus. 8. The applicant was reported as AWOL on 13 September 2005 and was dropped from the rolls and reported as a deserter on 15 October 2005. 9. On 2 March 2006, the applicant was arrested by civil authorities and returned to military control. 10. A DD Form 458 (Charge Sheet) shows charges were preferred against the applicant on 9 March 2006, for violation of the Uniform Code of Military Justice (UCMJ), for being AWOL from 13 September 2005 until on or about 2 March 2006. 11. On 9 March 2006, 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. 12. The applicant's chain of command recommended approval of his request for discharge with a discharge characterization of UOTHC. 13. 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. 14. Orders and the applicant's DD Form 214 confirm he was discharged from the U.S. Army Reserve on 5 April 2006, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. He was credited with completing 11 months and 5 days of net active service this period with lost time due from 13 September 2005 until 1 March 2006. He was awarded or authorized the: * Army Reserve Components Achievement Medal (2d Award) * National Defense Service Medal * Army Service Ribbon * Armed Forces Reserve Medal with M Device 15. On 22 September 2022, the applicant was asked to provide medical documents that support his medical issues; however, he did not respond. The available record is void of documentation of an injury to his eyes sustained in Iraq or diagnosis of PTSD, or any other medical condition during his period of service. 16. 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. 17. 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. 18. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an upgrade of his 5 April 2006 discharge characterized as under other than honorable conditions. For his explanation of his absence without leave (AWOL), he states he was medically evacuated from Iraq for eye injuries and after evaluation and treatment, was sent on convalescent leave. His “eyesight returned for a period of time” and he received orders to return to Iraq through Camp Shelby, MS. He states when he tried to report to Camo Shelby, he was turned around and sent to an Armory in Knoxville, TN. b. He states the commander at the Armory told him he would attempt to contact his commander in Iraq but while he was waiting: “Evidently, there was a miscommunication and an AWOL charge where a federal warrant was issued . I was picked up and in and put in jail.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 for the period of Service under consideration shows the former USAR Soldier entered Active Duty on 12 November 2004 and was discharged on 5 April 2006 under the separation authority provided in chapter 10 of AR 635-200, Active Duty Enlisted Administrative Separations (6 June 2005): Discharge in Lieu of Trial by Court-Martial. d. A Charge Sheet (DD form 458) shows the applicant was charged with absence without leave from 13 September 2005 thru 2 March 2006, the day he has apprehended by civilian authorities in e. On 9 March 2006, he voluntarily requested discharge in lieu of courts-martial under provisions provided in chapter 10 of AR 635-200. He stated in his request: “I understand that I may request discharge in lieu of trial by courts-martial because of the following charge(s) which (has) (have) been preferred against me under the Uniform Code of Military Justice, which authorize(s) the imposition of a bad conduct or dishonorable discharge: Article 86 UCMJ: AWOL 13 Sep 05 to O/A 2 Mar 06.” f. He declined to make a statement on his own behalf. g. On 17 March 2006, the garrison commander of Ft. Knox approved his request and directed he be discharged from the U.S. Army, under the provisions of AR 635-200, Chapter 10, Discharge in Lieu of Trial by Courts-Martial; be reduced to the lowest enlisted grade; and receive and under other than honorable characterization of service h. No medical documentation was submitted with the application. Five theater AHLTA encounters show he was treated for a rotator cuff injury three times, once for an elbow sprain, and his final theater encounter on 2 February 2005 was for influenza. His next encounter was on 5 August 2005 for knee pain, and his final encounter was 9 August 2005 with ophthalmology: “History of chronic conjunctivitis complicated by mucus fishing syndrome. Now on Doxycycline x 2 months, with good ocular hygiene and lubrication. No complaints. Assessment: DRY EYE SYNDROME: Resolved mucus fisher syndrome secondary to MGD. Continue Doxy 100mg orally bid for 2 additional months discontinue ilotycin. Return to duty status approved i. From the National Library of Medicine: “Mucus fishing syndrome (MFS) is a cascading cyclic condition characterized by continuous extraction of mucous strands from the eye. It is usually initiated by ocular irritation. In response to irritation, ocular surface cells produce excess mucus. A "snow balling" cycle begins when the patient extracts ("fishes") excess mucus from the ocular surface, thereby causing further irritation and a more- profound mucous discharge. To date, treatment includes eliminating the initiating element and educating the patient not to touch the eye when extracting the excess mucus. (https://pubmed.ncbi.nlm.nih.gov/11712630/#:~:text=Background%3A%20Mucus %20fishing%20syndrome%20(MFS,surface%20cells%20produce%20excess%2 0mucus.) j. No evidence of a medical evacuation or eye injury was found in the supporting documentation. k. Review of his records in JLV shows he has no diagnosed mental health condition and has no service-connected disability ratings. l. It is the opinion of the ARBA medical advisor that neither a discharge upgrade based upon a medical condition nor a referral of his case to the Disability Evaluation System is warranted. 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 and available military records and medical review, the Board concurred with the advising official finding that neither a discharge upgrade based upon a medical condition nor a referral of his case to the Disability Evaluation System is warranted. 2. The Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The Board noted the applicant provide no post service achievements or character letters of support for the Board to weigh in consideration of clemency. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. Therefore, relief was denied. 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, 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. 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. 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) AR20220003133 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1