IN THE CASE OF BOARD DATE: 22 February 2023 DOCKET NUMBER: AR20220003434 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three-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 the incident he went through messed him up for years. He suffered with Post Traumatic Stress Disorder (PTSD) after this incident. His whole tour of duty was never complicated, no bad marks on his record. He suffered his PTSD while in Germany until present. 3. By memorandum dated 23 September 2022, the applicant was instructed to provide documentation in support of his contentions regarding PTSD. He was given a 30-day suspense; however, he did not respond. 4. The applicant enlisted in the Regular Army on 9 July 1981, for a 3-year term of service. He was awarded military occupational specialty 64C (Motor Transport Operator). The available record is void of a DD Form 214 for this period of service. 5. The applicant reenlisted in the Regular Army on 3 April 1984, for a 4-year term of service in the rank of Specialist/E-4. 6. On 12 July 1985 the applicant took an oath of extension of his enlistment to extend his contract by 3-months to meet service remaining requirements with dependents for his tour. 7. Court-martial charges were preferred against the applicant on 30 June 1986. His DD Form 458 (Charge Sheet) shows he was charged with being absent without leave (AWOL) from on or about 6 May 1986 through on or about 17 June 1986. 8. A Personnel Control Facility Interview Sheet, dated 23 June 1986 shows the applicant was interviewed and noted that he went AWOL because he wanted to save his marriage and take care of his two kids His father and his grandmother were in poor health and he needed to be home to support them. He went through his whole chain of command for help prior to going AWOL. 9. The applicant consulted with legal counsel on or about 30 June 1986 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the Uniform Code of Military Justice; the possible effects of a UOTHC discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He elected not to submit a statement in his own behalf. 10. The separation authority approved the applicant's request for discharge on 21 August 1986, for the good of the service and directed that he be reduced to the lowest enlisted grade with the issuance of a DD Form 794A (UOTHC Discharge Certificate). 11. The applicant was discharged on 15 September 1986. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of service - in lieu of court-martial. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He was credited with 2 years, 4 months, and 2 days of net active service this period, with 42 days of lost time and 75 days of excess leave. 12. 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. 13. 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. 14. By regulation AR 635-8 (Separation Processing and Documents), currently in effect, states Soldiers separated with less than an honorable character of service will show the following comment in item 18 (Remarks): "CONTINUOUS HONORABLE SERVICE FROM (first day of service not listed on the DD Form 214) TO (date before commencement of current enlistment). 15. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his UOTHC discharge. 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 asserts PTSD beginning in Germany until the present. (2) On 23 September 2022 he was sent communication to provide diagnosis in support of PTSD within 30 days, but he did not respond. (3) He initially enlisted in the RA on 9 July 1981. (4) Court-martial charges were preferred against applicant on 30 June 1986 showing AWOL from o/a 6 May 1986 through o/a 17 June 1986. (5) Records dated 23 June 1986 note that upon interview he stated he went AWOL to save his marriage and take care of his kids. He needed to support family members at home. He attempted to get help from his chain of command before going AWOL. (6) He was discharged on 15 September 1986, DD214 confirms discharge under AR 635-200 Chapter 10, in lieu of court-martial, UOTHC. c. Supporting Documents All supporting documents reviewed. Lack of citation or discussion in this section should not be interpreted as lack of consideration. His application references PTSD associated with circumstances and mitigation. He has not provided any additional medical or psychiatric records in support of his application. 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. There are no service-connected conditions listed and his record is void of relevant clinical data. f. Other Query of HAIMS did not return any documents for this applicant. Kurta Questions: * Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant asserts PTSD associated with his application. * Did the condition exist or experience occur during military service? Yes, per the applicant’s assertion only. * Does the condition or experience actually excuse or mitigate the discharge? Partial. The applicant asserts mitigation due to PTSD at the time of his offense/discharge and his assertion alone is worthy of consideration by the Board. PTSD, assuming the index trauma occurred prior to his AWOL, would typically mitigate such an event as avoidance behaviors, such as AWOL, are consistent with the natural course and sequelae of PTSD. However, it is the BH advisor’s opinion that applicant has not demonstrated the presence of PTSD or associated psychiatric condition; therefore, there is no compelling evidence of a nexus or mitigation between his psychiatric functioning and the offense leading to discharge. 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 that applicant has not demonstrated the presence of PTSD or associated psychiatric condition; therefore, there is no compelling evidence of a nexus or mitigation between his psychiatric functioning and the offense leading to discharge. The Board found the applicant provided no post service achievements or character letters of support for the Board to weigh as 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. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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: Except for the correction addressed in Administrative Note(s) below, the Board found 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. ADMINSTRATIVE NOTES: 1. A review of the applicant’s records shows he is authorized additional awards not annotated on his DD Form 214 for the period ending 15 September 1986. As a result, amend his DD Form 214 by adding: * Overseas Service Ribbon * Drivers Badge * Mechanics Badge * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) 2. There was sufficient evidence to show administrative omission for his honorable periods of service for the period ending 15 September 1986. As a result, amend the applicant's DD Form 214, ending 15 September 1986, by adding the following comment to item 18: "CONTINUOUS HONORABLE SERVICE FROM 19810709 TO 19850712." 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 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. 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. b. 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 provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, an UOTHC discharge was normally considered appropriate. 4. Army Regulation 672-5-1 (Awards), 3 May 1961, stated the primary purpose of the awards program is to provide tangible evidence of public recognition for acts of valor and for exceptional service or achievement. a. The Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; for the first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946; and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year. The enlisted person must have had all "Excellent" conduct and efficiency ratings. Ratings of "Unknown" for portions of the period under consideration were not disqualifying. Service school efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to 22 November 1955 were not disqualifying. There must have been no convictions by a court-martial. There was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in general orders. b. The National Defense Service Medal was awarded for honorable active service for any period between 27 July 1950 and 27 July 1954, both dates inclusive, or after 31 December 1960 and before a terminal date to be announced. 5. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service BCM/NRs, on 3 September 2014, 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. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on 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. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 7. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018, 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003434 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1