IN THE CASE OF: BOARD DATE: 20 January 2023 DOCKET NUMBER: AR20220006355 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge (UOTHC) to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 149 (Application for Correction of Military Record) * Miscellaneous documents from military personnel record (nine pages) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the 3-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 he was suffering from post-traumatic stress disorder (PTSD). He thought he might get someone killed. He felt like they were bullying him. His brain was just bad. He needs an honorable discharge and his recruiter lied to him about dependents. He was taking care of his family when he enlisted, and it put them on the streets. He did his part, but he was suffering from PTSD and has brain damage. 3. The applicant enlisted in the Regular Army on 24 February 2005, for 4 years. His military occupational specialty was 11B (Infantryman). The highest grade he attained was private/E-1. 4. The applicant was reported as absent without leave (AWOL) on 21 December 2005. His duty status changed from dropped from the rolls to present for duty on 9 May 2006, when he surrendered to military authorities at Fort Knox, KY. 5. Court-martial charges were preferred against the applicant on 11 May 2006, for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with one specification of AWOL from on or about 21 December 2005 until on or about 9 May 2006. 6. The applicant consulted with legal counsel on 11 May 2006 and was advised of the basis for the contemplated 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. 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 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 Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State law and he might expect to encounter substantial prejudice in civilian life because of an UOTHC discharge. b. He was advised that he could submit statements in his own behalf; he elected not to submit a statement. 7. The applicant’s commander forwarded his request for discharge in lieu of trial by courts martial for appropriate action on 7 August 2006. 8. The separation authority approved the applicant's request for discharge on 10 August 2006, in lieu of trial by court-martial and directed his reduction to the lowest enlisted grade and the issuance of an UOTHC discharge. 9. The applicant was discharged on 23 August 2006. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. His characterization of service was UOTHC (Separation Code KFS, Reentry Code 4). He completed 1 year, 1 month, and 12 days of net active service. He lost time from 21 December 2005 to 8 May 2006. It also shows he was awarded or authorized the National Defense Service Medal, Army Service Ribbon, and Parachutist Badge. 10. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 11. The applicant provides portions of his service record discussed above. 12. On 15 August 2022, via email, a staff member at the Army Review Boards Agency (ARBA) requested medical documents to support the applicant's claim of PTSD. On 16 August 2022 an email from, stated she has power of attorney, but the applicant is incarcerated. He is seeking help with getting a release and thought his conditions may be recorded from his military time served. 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. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 14. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting a change to his military record. He is applying for an upgrade of his other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. He contends he had mental health conditions that mitigated his misconduct, PTSD and TBI. 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 enlisted in the Regular Army on 24 February 2005; 2) The applicant went AWOL from 21 December 2005-9 May 2006; 3) The applicant was discharged on 23 August 2006 with a Chapter 10, in lieu of trial by court-martial. His characterization of service was UOTHC. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) was also reviewed. No additional hardcopy military or civilian treatment records were provided for review. d. The applicant asserts he was experiencing PTSD and TBI while on active service. A review of JLV is void of medical records. The applicant did not provide any documentation or discuss any diagnosis or treatment of PTSD or TBI from a civilian provider. The applicant has no service-connected disabilities. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. However, the applicant contends he was experiencing PTSD and TBI that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing PTSD and TBI that contributed to his misconduct. (2) Did the condition exist or experience occur during military service? Yes, the applicant contends his PTSD and TBI occurred while on active service. (3) Does the condition experience actually excuse or mitigate the discharge? Partial. There is no evidence supporting the applicant was experiencing PTSD or TBI while on active service, and JLV is void of any history of VA medical treatment. The applicant did go AWOL, which can be a sequalae to PTSD. However, this is not sufficient to establish a history of PTSD or TBI during active service. However, the applicant contends he was experiencing PTSD and TBI that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration 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 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. 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 only partial mitigation. There is evidence supporting the applicant was experiencing PTSD or TBI while on active service. The applicant did go AWOL, which can be a sequalae to PTSD. However, this is not sufficient to establish a history of PTSD or TBI during active service. He contends that he was experiencing PTSD and TBI that mitigated his misconduct. 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 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, U.S. Code, 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. 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 of that regulation provided, in pertinent part, 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, a UOTHC discharge was normally considered appropriate. 3. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Boards for Correction of Military/Naval Records (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. 4. 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 sexual assault or sexual harassment was unreported, or 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. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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) AR20220006355 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1