IN THE CASE OF: BOARD DATE: 7 February 2023 DOCKET NUMBER: AR20220005707 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Statement FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080002628, on 11 June 2008. 2. The applicant states: * he was thrown to the wolves by the Army, after his civil conviction; still, he loves his country, and he is a patriot * he does not want potential employers thinking he is not a patriot; his short service in the Army was excellent * an incident occurred; his mother was smoking crack, so he left without permission * he was thrown at the mercy of the legal system when he was suffering from post- traumatic stress disorder (PTSD), paranoid schizophrenia, and depression * jail doctors diagnosed him with these mental conditions in 2018 and 2019; but he has been suffering since 1984 * he feels the Army should have done more such as psychological evaluation, interviews, attorneys, and not dishonorably discharging him * he is a homeless, pre-op transgender female now, living in he came out due to all the violence in his life * he loves the United States, but it is impossible to survive without benefits such as medical, survivor benefits, and pay and allowances 3. Review of the applicant s service records shows: a. He enlisted in the Regular Army on 13 May 1986. He completed initial entry training and was awarded military occupational specialty (MOS) 11B (Infantryman). b. After completing MOS training, he was reassigned to Fort Drum, NY. The highest rank he attained was private/PV2. c. On 12 January 1987, the applicant was reported absent without leave (AWOL) and on 11 February 1987, he was dropped from the rolls of the Army and classified a deserter. He was apprehended by the Sherriff on or about 22 February 1987, and charged with murder and confined in the Jail. d. The available evidence, consisting of a memorandum for record, dated 5 May 1988, shows that an inquiry to the revealed that the applicant was sentenced on 1 March 1988 for voluntary manslaughter, and was serving 8 to 13-year sentence, and that he was credited for 259 days served. e. On 20 October 19987, the immediate commander mailed the applicant a letter informing him that he was initiating action to separate him under the provisions of chapter 14 of Army Regulation (AR) 635-200 (Enlisted Personnel) due to Conviction by Civil Court. The specific reason is that the applicant had been convicted on 22 July 1987 and sentenced to 8 years for voluntary manslaughter with a firearm. The commander recommended an under other than honorable conditions discharge. f. The applicant did not acknowledge or respond to the notification of separation action initiated by his commander. g. His commander initiated action to separate him under the provisions of Section II (Conviction by Civil Court), Chapter 14 (Separation for Misconduct), AR 635-200. The evidence shows that although the applicant was confined by civil authorities at the time, attempts were made to advise him of his rights by mail. However, in a memorandum for record, dated 5 January 1988, the applicant's commanding officer stated the applicant failed to respond to his letter of notification under the provisions of AR 635- 200, paragraph 14-5. The applicant had been given sufficient time to respond to the letter of notification that was sent to him on 26 October 1987, and that although a signature of addressee acknowledged receipt of this paperwork, no response had been received by 5 January 1988. As a result, the applicant's rights under the provisions of AR 635-200, Chapter 2, paragraph 2-4(f) were waived. h. The applicant s intermediate and senior commanders recommended approval with the issuance of an under other than honorable conditions discharge. i. On 22 January 1988, the applicant s defense counsel sent him a letter to advise him of the meaning and effect of Chapter 14, AR 635-200 separation proceedings currently being imposed on him. Separation was initiated by his commander for conviction by a civil court under paragraph 14-5, AR 635-200. He has this authority. * he should understand that normally this discharge will be characterized as "other Than Honorable, this is the worst type of administrative discharge * Among other things, it means that he forfeits all accrued leave, lose important Veterans administrative benefits, and any priority reserved for Veterans in certain types of civilian employment * The separation is not punitive; however, he is not given a separate federal conviction along with the separation j. On 5 May 1988, a paralegal specialist of the Office of Staff Judge Advocate, Headquarters, 7th Infantry Division contacted the Appeals Division, and was informed that the appeal period is 60 days and that no appeal (for the civil conviction) is on file for the applicant. k. On 11 May 1988, the separation authority approved the applicant's discharge under the provisions of paragraph 14-5 of AR 635-200 and directed that he was issued an Under Other Than Honorable Conditions Discharge Certificate. On 15 June 1988, the applicant was discharged accordingly. l. The applicant s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 14 of AR 635-200, due to civil conviction, with an under other than honorable conditions characterization of service. He was assigned Separation Code JKB and Reentry Codes 3/3B/3C. He completed 7 months and 29 days of active service and he had lost time from 12 January 1987 to 15 June 1988. m. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. n. On 11 June 2008, the Board denied the applicant s request to upgrade his discharge. The Board determine d the following: (1) The applicant's contentions were noted; however, there are no provisions for upgrading a discharge solely on the passage of time or for the purpose of improving his employment prospects. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. (2) The evidence of record shows that the applicant was convicted of voluntary manslaughter by a civil court. As a result, he was discharged under the provisions of AR 635-200, Chapter 14 for misconduct due to a civil conviction. The applicant failed to provide any evidence which proves that the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade. (3) Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, he is not entitled to either an honorable or general discharge. 4. In reaching its determination, the Board can consider the applicant s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 5. MEDICAL REVIEW: a. The applicant is requesting reconsideration of previous request for an upgrade of 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) The applicant s request was previously considered by the ABCMR, Docket AR20080002628, on 11 June 2008. (2) Applicant asserts, in part, suffering PTSD, paranoid schizophrenia, and depression; was reportedly diagnosed with these conditions while incarcerated in 2018 and 2019 but has been suffering since 1984. (3) Applicant is currently a homeless, pre-op transgender female living in and indicates it is impossible to survive without benefits to include medical, survivor benefits, and pay and allowances. (4) Applicant enlisted into the RA on 13 May 1986. On 12 January 1987 he was reported AWOL, and on 11 February 1987 he was DFR. He was apprehended by the sheriff on or about 22 February 1987 and charged with murder and confined in a civilian jail. (5) Records show applicant was sentenced 1 March 1988 for voluntary manslaughter and was serving an 8- to 13-year sentence. (6) On 20 October 1987, his commander mailed applicant a letter informing him of separation proceedings under AR 635-200 Chapter 14, conviction by a civil court, to which applicant apparently did not respond. (7) The applicant was ultimately discharged under AR 635-200 Chapter 14 (due to civil conviction), UOTHC. (8) On 11 June 2008 the ABCMR denied applicant s request for upgrade of discharge. The current ROP do not suggest that any medical records or a medical advisory were part of this prior consideration. c. Supporting Documents All supporting documents contained in file were reviewed. Applicant asserts, in essence, PTSD and other mental health conditions to include paranoid schizophrenia and depression, which she (advisor will utilize preferred gender pronouns for current data given she reportedly now identifies as female) noted were diagnosed by San Bernardino corrections mental health providers in 2018 and 2019. DD149 also indicates transgender as related to request. She states she has been suffering from mental health conditions since 1984 and claims, in part, the Army should have done more regarding these conditions and at the time of service she was never evaluated by a psychiatrist. Available records indicate applicant was discharged following civil conviction for voluntary manslaughter with a firearm (eg, Memorandum Notification of Personnel Action dated 11 May 1988). There is no indication the applicant has provided any additional medical or psychiatric records in support his claimed diagnoses. 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. Chart review indicates no service- connected conditions, and the record is void of clinical data. Applicant is coded as ineligible/eligible for humanitarian emergency only. f. Other Query of HAIMS did not return any documents for this applicant. There are no hard- copy in-service medical records for this applicant available for review. ? 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 asserts PTSD, paranoid schizophrenia, and depression dating back to 1984 associated with the circumstances of his discharge. (2) Did the condition exist or experience occur during military service? Yes, per the applicant s assertion. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant asserts mitigation due to PTSD and other mental health factors at the time of offense/discharge. This assertion alone is worthy of consideration by the Board. Although the applicant reports multiple psychiatric diagnoses rendered during incarceration (2018 and 2019) and subjective psychiatric concerns dating back to 1984, she has provided no direct medical evidence/records of same, and there are no available in-service records indicative of any such concerns. Perhaps more importantly, such conditions (even presumed paranoid schizophrenia) would not typically impair one s ability to distinguish right from wrong and adhere to the right. It is the Agency advisor s position that discharge secondary to civil conviction of voluntary manslaughter with a firearm would not be mitigated by applicant s claimed conditions, even if presumed to have been relevant at the time of conviction/discharge. BOARD DISCUSSION: 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 applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was discharged from active duty due to Misconduct Civil Conviction. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant asserts mitigation due to PTSD and other mental health factors at the time of offense/discharge. Although the applicant reports multiple psychiatric diagnoses rendered during incarceration (2018 and 2019) and subjective psychiatric concerns dating back to 1984, he has provided no direct medical evidence/records of same, and there are no available in-service records indicative of any such concerns. The Board agreed that discharge secondary to civil conviction of voluntary manslaughter with a firearm would not be mitigated by applicant s claimed conditions, even if presumed to have been relevant at the time of conviction/discharge. The applicant provided no 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 character of service the applicant received upon separation was not in error or unjust. 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 to amend the decision of the ABCMR set forth in Docket Number AR20080002628, on 11 June 20081. 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and absences without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted. Chapter 2 of this regulation provides guidance on the notification procedure, and essentially states that if the respondent is in civil confinement or absent without leave, the relevant notification procedures apply; however, if notice by mail is authorized and the member fails to acknowledge receipt or submit a timely reply, that fact shall constitute a waiver of rights. a. Paragraph 3-7a states that 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. Paragraph 3-7b states that 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. 2. 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 under other than honorable conditions, 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. 3. 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; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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. 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. 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. 5. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220005707 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1