IN THE CASE OF: BOARD DATE: 30 September 2022 DOCKET NUMBER: AR20220003651 APPLICANT’S REQUEST: Upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Administrative Separation Recommendations * Character reference letter * Fallen Heroes Memorial extract FACTS: 1. Standard of Review. When arriving at its findings and making its determinations, the Board shall review the petition for requested relief independent from any previous petitions submitted to the Army Discharge Review Board or the Army Board for Correction of Military Records (ABCMR). 2. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the 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. 3. The applicant states that while he was deployed to Iraq, one of his friends was killed in action. As a result, he suffers from Post-Traumatic Stress Disorder (PTSD). His squad leader and a fellow Soldier were sleeping with the applicant's wife, who was a willing participant. The pressure of their action and the impact of combat service in Iraq destroyed him. He did not have a vehicle so; his squad leader drove him to work. When the applicant confronted his squad leader about sleeping with his wife, the squad leader stopped taking him to work and he had no way to get there. The squad leader then told the chain of command that he was habitually absent without leave (AWOL) and engineered his separation from the Army. Although his unit commander, battalion command sergeant major (CSM), and battalion commander all recommended that he be separated with a General discharge under honorable conditions, he received a discharge UOTHC. Although the applicant indicated in Item 13 of his DD Form 149 that PTSD and other mental health conditions were related to his request, he did not expound upon those issues any further. 4. The applicant's service records show: a. On 1 November 2000, the applicant enlisted into the Regular Army for a period of 3 years. Upon completion of initial entry training, he was assigned to the 317th Engineer Battalion located at Fort Benning, Georgia. b. On 22 November 2002, he reenlisted for a period of 2 years. c. He served in Iraq from 19 March 2003 until 30 April 2003 and was subsequently reassigned to a unit at Fort Campbell, Kentucky. d. A DA Form 4856 (Developmental Counseling Form) shows he was counseled on 1 October 2004 for missing mandatory formations three times in one week. He was advised that he was being recommended for nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) and possible separation from the military under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, for a pattern of misconduct. e. DA Forms 4187 (Personnel Action) show the applicant's duty status was changed as follows: * from present for duty (PDY) to AWOL effective 22 October 2004 * from AWOL to AWOL Confined by Civil Authorities (AWC) effective 29 October 2004 * from AWC to PDY effective 1 November 2004 f. A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) shows he accepted field grade NJP on 1 December 2004 for violating Article 86, UCMJ by on or about 22 October 2004, without authority, absenting himself from his unit and remaining so absent until on or about 29 October 2004. His punishment consisted of: reduction in rank/grade from Specialist (SPC)/E-4 to Private (PV2)/E-2; forfeiture of $668.00 per month for two months, suspended, to be automatically remitted if not vacated before 1 May 2005; extra duty for 45 days; and restriction for 45 days. g. DA Forms 4187 show the applicant's duty status was changed as follows: * from PDY to AWOL effective 7 December 2004 * from AWOL to PDY effective 13 December 2004 h. A DA Form 4856 shows the applicant was counseled on 6 January 2005 regarding his performance and behavior during the month of December 2004. He received favorable comments in the areas of physical fitness and discipline at work. However, he received less than favorable comments in the areas of performance, appearance, accountability, and personal issues. It was acknowledged that he was experiencing marital problems and he was assured that the chain of command intended to help him work through these issues to the best of their ability. i. DA Forms 4187 show the applicant's duty status was changed as follows: * from PDY to AWOL effective 18 January 2005 * from AWOL to Dropped from Rolls (DFR) effective 18 February 2005 j. A DD Form 553 (Deserter/Absentee Wanted by the Armed Forces) shows the applicant was reported as a deserter effective 18 February 2005. k. A DD Form 616 (Report of Return of Absentee) shows the applicant was apprehended by civil authorities and returned to military control on 11 October 2005. l. A DA Form 4187 shows his duty status was changed from DFR to PDY effective 11 October 2005. m. A DA Form 4856 shows he was counseled on 26 October 2005 regarding his history of AWOL, being DFR, and being apprehended by Civil Authorities. He was advised these actions would not be tolerated and that he was being recommended for administrative separation under the provisions of Army Regulation 635-200, Chapter 14. He was further advised that any further actions of this nature would adversely affect his separation actions and result in more severe punishment. n. The applicant underwent a pre-separation medical examination: (1) A DD Form 2807-1 (Report of Medical History) shows the applicant indicated he was not taking any medications at the time. While in six years prior, at the age of 19, he fell off a three-story building and suffered a sprained leg, a bullet grazed his left leg, he received four stab wounds, and a laceration below his left eye. While attending Basic Combat Training at Fort Leonard Wood, Missouri, he hit his head against a brick wall and suffered a concussion. He admitted to smoking marijuana during the period he was DFR. (2) A DD Form 2808 (Report of Medical Examination) shows the examination revealed no defects or diagnoses and he was found to be medically qualified for separation actions. o. A DA Form 3822 (Report of Mental Status Evaluation) shows the applicant underwent a mental status evaluation on 9 November 2005 and was psychiatrically cleared for any administrative action deemed necessary by command. p. A DD Form 458 (Charge Sheet) shows a charge was preferred against him for three specifications of violation of Article 86, UCMJ by, without authority, absenting himself from his unit on or about: (1) 22 October 2004, and remaining so absent until on or about 29 October 2004; (2) 7 December 2004, and remaining so absent until on or about 12 December 2004; and (3) 18 January 2005, and remaining so absent until on or about 11 October 2005. q. A Court-Martial Transmittal Form shows his company and battalion level commanders recommended he be tried before a Special Court-Martial with the authority to issue a Bad Conduct Discharge (BCD). r. On 1 February 2006, after consulting with counsel, the applicant voluntarily requested discharge in-lieu of trial by court-martial, under the provisions of Army Regulation 635-200, Chapter 10 (Discharge in Lieu of Trial by Court-Martial). In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. 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 DVA and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He acknowledged his right to submit statements in his own behalf. s. His chain of command recommended approval of his request with the issuance of a UOTHC discharge. t. On 15 February 2006, the separation authority approved the applicant's request; directed his reduction to the rank/grade of Private (PV1)/E-1; and directed his discharge UOTHC. u. Orders and his DD Form 214 (Certificate of Release or Discharge from Active Duty) show he was discharged on 22 February 2006 in the rank/grade of PV1/E-1. He was credited with completion of 4 years, 6 months, and 14 days of net active service this period. His DD Form 214 shows in: * block 18 (Remarks) He was credited with continuous honorable service from 1 November 2000 until 21 November 2002. He served in Iraq from 19 March 2003 until 30 April 2003. * block 24 (Character of Service) - His characterization of service was UOTHC. * block 25 (Separation Authority) - The authority for his separation was Army Regulation 635-200, Chapter 10. * block 26 (Separation Code) - His Separation Program Designator Code was "KFS." * block 27 (Reentry Code) - His Reentry Eligibility (RE) Code was "4." * block 28 (Narrative Reason for Separation) - The narrative reason for his separation was "In Lieu of Trial by Court-Martial." * block 29 (Dates of Time Lost During This Period) - He was credited with lost time due to being AWOL from 22 October 2004 until 31 October 2004, from 7 December 2004 until 12 December 2004, and from 18 January 2005 until 10 October 2005. v. His record is void of evidence showing he was diagnosed with PTSD or other Behavioral Health or medical condition during his period of service. 5. The applicant provides the following documentation in support of his petition: a. A copy of an Administrative Separation Recommendations form which shows his unit commander, battalion CSM and battalion commander recommended he be separated with issuance of a General discharge on 2 November 2005, 31 October 2005, and 28 October 2005, respectively. b. A character reference letter rendered by a retired staff sergeant with whom he used to work at Fort Campbell, Kentucky in 2003. He stated he noticed the applicant's serious withdrawals from other Soldiers in the company and other unethical behaviors. He would keep to himself and get into arguments with his superiors which resulted in a lot of disciplinary actions being taken against him. He also witnessed very bad conduct from the applicant's wife who would come to his workplace and cause very bad scenes and infidelity with other Soldiers. The applicant's emotional state from issues at work and home impacted his well-being and ability to perform his duties properly. c. A page from an unknown source entitled "Fallen Heroes of Operation Iraqi Freedom" which shows the Soldier the applicant identified as his friend was killed by enemy fire in Iraq on 6 April 2003 extract 6. The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no evidence that would indicate the contrary. 7. 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. 8. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 9. MEDICAL REVIEW: The applicant is applying to the ABCMR requesting upgrade of discharge from Under Other Than Honorable Conditions (UOTHC) to Honorable contending that his misconduct (missing multiple formations; being AWOL from 22 Oct 2004 until 1 Nov 2004; 7 Dec 2004 to 13 Dec 2004; 18 Jan 2005 until 11 Oct 2005) was caused by PTSD he developed as a result of deployment to Iraq. a. 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 entered the Army on 1 Nov 2000; 2) The applicant deployed to Iraq from 19 March 2003 until 30 Apr 2003; 3) He was discharged on 22 Feb 2006. b. Military medical documentation reviewed includes: 1) DD Form 2807-1 (Report of Medical History), dated 8 Oct 2005, indicates applicant reported incurring a head injury 6 years prior when he fell from a third floor window; he also reported incurring a concussion when he hit his head on a brick wall during BCT at Fort Leonard Wood. 2) DA Form 38-22-R, OCT 82 (Report of Mental Status Evaluation) dated 9 Nov 2005, which indicates that the applicant had a normal mental status examination. He had the mental capacity to understand and participate in administrative proceedings; was mentally responsible; was psychiatrically cleared for any administrative action deemed appropriate by command. c. The military electronic medical record, AHLTA, was not reviewed as it was not in use during applicant’s period of service. Review of the VA medical record, JLV, indicates that the applicant has been diagnosed with Major Depressive Disorder, recurrent, severe, without psychotic features; Post Traumatic Stress Disorder, chronic; Cannabis Dependence; Cocaine Use, unspecified with cocaine-induced mood disorder; Homelessness, unspecified. A 13 Jan 2021 Psychology note documents that the applicant scored in the severe range on his PTSD screen (PCL-5 score-69; scores 50 or greater indicate clinically significant PTSD). The note also states that the applicant meets DSM-V criteria for the following BH conditions: Chronic PTSD due to combat; Major Depressive Disorder, severe without psychotic features; Cocaine Dependence; Cannabis Dependence. d. Based on the available information, it is the opinion of the Agency BH Advisor that the applicant has two mitigating BH conditions, PTSD due to combat in Iraq and mild TBI. (Of note, the applicant’s history of major misconduct began after he returned from his deployment to Iraq). As there is an association between PTSD/TBI and avoidant behaviors, there is a nexus between his diagnosis of combat PTSD/TBI and his multiple periods of AWOL and missed formations. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes, the applicant has two potentially mitigating BH conditions: PTSD due to combat and TBI. (2) Did the condition exist or experience occur during military service? Yes-the TBI occurred during BCT and the PTSD developed from combat in Iraq. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes, it is the opinion of the Agency BH Advisor that the applicant has two mitigating BH conditions, PTSD due to combat in Iraq and mild TBI. (Of note, the applicant’s history of major misconduct began after he returned from his deployment to Iraq). As there is an association between PTSD/TBI and avoidant behaviors, there is a nexus between his diagnosis of combat PTSD/TBI and his multiple periods of AWOL and missed formations. BOARD DISCUSSION: After reviewing the application, the Board found that relief was warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the record of service, the frequency and nature of the misconduct and the reason for separation. The applicant was charged with commission of an offense punishable under the UCMJ with a punitive discharge. After being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial and carry an under other than honorable conditions characterization of service. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official and concurred with the medical advisory opinion finding sufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant also provided evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the applicant’s service did not rise to the level required for an honorable characterization of service; however, a general discharge is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests. 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 reissuing him a DD Form 214 for the period ending 22 February 2006 showing his character of service as Under Honorable Conditions, General. * Separation Authority: No Change * Separation Code: No Change * Reentry Code: No Change * Narrative Reason for Separation: No Change 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. An honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge when subsequent honest and faithful service over a greater period outweighed disqualifying entries in the Soldier's military record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. A general discharge was a separation from the Army under honorable conditions. When authorized, separation authorities could issue a general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial in the following circumstances. (1) An under-other-than-honorable-conditions discharge will be directed only by a commander exercising general court-martial authority, a general officer in command who has a judge advocate or legal advisor available to his/her command, higher authority, or the commander exercising special court-martial convening authority over the Soldier who submitted a request for discharge in lieu of court-martial (see chapter 10) when delegated authority to approve such requests. (2) When the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army. Examples of factors that may be considered include the following: * Use of force or violence to produce bodily injury or death * Abuse of a position of trust * Disregard by a superior of customary superior-subordinate relationships * Acts or omissions that endanger the security of the United States or the health and welfare of other Soldiers of the Army * Deliberate acts or omissions that seriously endanger the health and safety of other persons d. Chapter 10 applied to Soldiers who had committed an offense or offenses for which the punishment under the UCMJ included a punitive (i.e. bad conduct or dishonorable) discharge. Soldiers could voluntarily request discharge once charges had been preferred; commanders were responsible for ensuring such requests were personal decisions, made without coercion and after having access to counsel. The regulation stated the Soldier should receive a reasonable amount of time (not less than 72 hours) to consult with counsel prior to making his/her decision. Once the decision was made, the Soldier was required to make his/her request in writing, which certified he/she had been counseled, understood his/her rights, could receive an under other than honorable conditions character of service, and recognized the adverse nature of such a character of service. In addition, the Soldier could submit statements in his/her own behalf for the separation authority's consideration prior to a decision on approval and character of service. 4. The Manual for Courts-Martial, U.S. 1984, Appendix 12 (Maximum Punishment Chart) showed the punishment for violation of Article 86 (AWOL for 30 or more days) included a bad conduct discharge; when the AWOL period was terminated by an apprehension, a dishonorable discharge was authorized. 5. Army Regulation 635-200, in effect at the time, stated when a Soldier was to be discharged under other than honorable conditions, the separation authority was required to direct the immediate reduction of those Soldiers to the lowest enlisted grade per guidance in Army Regulation 600-8-19 (Enlisted Promotions and Reductions). 6. 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 codes to be entered on the DD Form 214. Soldiers separated under the provisions of AR 635-200, Chapter 10 receive narrative reason "In Lieu of Trial by Court Martial" and an SPD Code of "KFS." 7. Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers at the time of retirement, discharge, or release from active duty service or control of the Active Army. It established standardized policy for preparing and distributing the DD Form 214. In pertinent part, it states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time or release from active duty retirement or discharge. The specific instructions for the following stated: * Block 24 - characterization or description of service is determined by directives authorizing separation * Block 25 - obtain correct entry from regulatory or directives authorizing the separation * Block 26 - enter the correct SPD representing the reason for separation (see Army Regulation 635-5-1) * Block 27 - enter reentry eligibility code (see Army Regulation 601-210 (Personnel Procurement Qualifications and Procedures for Processing Applicants for Enlistment and Reenlistment in the Regular Army)) * Block 28 - enter the reason for separation as shown in Army Regulation 635-5-1 based on the regulatory or other authority 8. 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. 9. 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. 10. 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) AR20220003651 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1