IN THE CASE OF: BOARD DATE: 27 January 2023 DOCKET NUMBER: AR20220006621 APPLICANT REQUESTS: Reconsideration of his previous requests for 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) * Three copies of Counsel's cover letter and 85-page petition with 12 previously considered exhibits and the following new Exhibits: * Clinical Psychologist letters, dated, 19 May 2020 and 2 October 2020 * License Clinical Social Worker (LCSW) letter, dated 18 June 2021 * Addendum to Applicant's Affidavit, dated 20 December 2021 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 Numbers AR20070011670 and AR20190008962, on 5 February 2008 and 11 February 2021, respectively. 2. Through counsel, the applicant requests clemency and another reconsideration in the interest of justice based on the submission of new relevant evidence, including: (1) changes in policy and law, (2) Department of Veterans Affairs (VA) service-connection for post-traumatic stress disorder (PTSD), (3) two expert reports from Aand (4) one expert report from LCSW. In accordance with the Freedom of Information Act, counsel request copies of all ex-parte communications, regulations, cases summaries, staff briefs, or memoranda, advisory opinions, investigation reports; and other documents being considered in the discharge review, prior to the Board's decision. 3. A legal brief (21 pages) [provided in its entirety to the Board] that reiterates many of the facts previously considered in the applicant's prior reviews. Counsel argues that the applicant's mental health condition, caused by combat experienced in the Gulf War, mitigates or excuses the misconduct which led to the applicant's discharge. The Hagel, Kurta, and Wilkie memoranda support the applicant's request for an honorable discharge based on meritorious service in the Gulf War and the effects of his mental health disorder on his post-war conduct. 4. The applicant's service record shows: a. On 27 September 1990, the applicant enlisted in the Regular Army, for a 4-year service commitment. Upon completion of training and award of military occupational specialty 12C (Bridge Crewman), he was assigned to Fort Benning, GA. b. On 10 January 1991, he departed Fort Benning, GA enroute to Southwest Asia, and arrived on 11 January 1991. On 25 February 1991, during a Scud Missile attack on the Barracks Warehouse, the unit suffered many severely injured and deceased Soldiers. c. The applicant's commander recommended the applicant for the following awards, on 4 April 1991, for his actions during the Scud Missile attack: (1) The Soldier's Medal for wounds he suffered during the Desert Storm Combat Operations as a result of enemy Scud missile. The 475th Transportation Company's (Provisional) compound took a direct hit and during the subsequent explosion and flying debris, he sustained injuries. He continued to demonstrate compassion for other more severely wounded Soldiers without regard for his personal safety, until the immediate crisis subsided. (2) The Army Commendation Medal showing he was recommended for the award due to his heroism and bravery - administering some first aid for head and body lacerations, broken bones, and shock and displaying courage, initiative, physical and mental stamina by continually going into the warehouse and searching for Soldiers and moving them to safety. d. On 15 May 1991, he departed Southwest Asia enroute to Fort Lenard Wood, MO. He arrived at his unit on 20 May 1991. e. On 5 March 1992, the applicant was formally counseled by his commander for his recommended separation for a pattern of misconduct. His DA Form 4856 (General Counseling Form), shows a summary of his counseling on: * on 9 July 1991, for traffic violation excessive speed * on 1 August 1991, for traffic violation illegal parking * on 25 September 1991, received a Company Grade Article for violating Article 86 of the Uniform Code of Military Justice (UCMJ) * on 21 November 1991, for being absent from accountability formation * on 7 February 1992, for not being clean shaven * on 21 February 1992, for failing a record Army Physical Fitness Test * failure to obey a lawful order or regulation by possessing an unregistered and loaded weapon and attempting to conceal the weapon (date not shown) f. A DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 6 April 1992, indicates the applicant was being processed for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, for patterns of misconduct (failure to obey a lawful order or regulation - Article 92 of the UCMJ). g. On 8 September 1992, the applicant's commander issued a memorandum disqualifying the applicant for award of the Good Conduct Medal due to Article 15, repeated patterns of misconduct, and a Criminal Investigative Division investigation. h. On an undetermined date court-martial charges were preferred against the applicant for violation(s) of the UCMJ. The relevant DD Form 458 (Charge Sheet) is not available for review. i. On 2 September 1992, after consulting with counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial. In his request, he acknowledged no one had subjected him to coercion, and that counsel had advised him of the implications of his request. He further acknowledged he was guilty of the five specifications of forgery, two specifications of altering identification cards and conspiracy. He elected to submit a statement in his own behalf, wherein he details his time in service and expressed remorse for his actions. He stated when he returned from Saudi Arabia his affairs were not in order due to his mother spending all his money, which left him desperately needing money and led to his financial problems. j. On 10 September 1992, the separation authority approved the applicant's request for separation, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. He further directed the applicant's reduction to the lowest enlisted grade and the issuance of an UOTHC discharge. k. On 23 September 1992, the applicant was discharged. 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 the service – in lieu of court-martial. His service was characterized as UOTHC, he was reduced to the lowest enlisted grade, and credited with completing 1 year, 11 months, and 27 days of net active service this period. He was awarded or authorized the: Army Service Ribbon, Kuwait Liberation Medal, National Defense Service Medal, Southwest Asia Service Medal, and two marksmanship badges. 5. On 17 April 2007, the Army Discharge Review Board denied the applicant's petition for an upgrade, determining his discharge was both proper and equitable. 6. The ABCMR denied the applicant's petitions for correction of his records, as follows: * on 17 August 2007, for correction of his records to show he was awarded the Soldier's Medal and Purple Heart * on 5 February 2008, for an upgrade of his UOTHC discharge to an honorable discharge * on 27 August 2019, reconsideration of his previous request for award of the Purple Heart * on 11 February 2021, reconsideration of his previous request for an upgrade of his UOTHC discharge to an honorable discharge 7. The applicant provides through counsel, the following documents labeled as: * Exhibits M and N – two Clinical Psychologist Letters regarding the applicant's evaluation and treatment with Behavioral Health Services at Truman VA and diagnostic impressions. * Exhibit O – letter from a LCSW at the VA, Harry S Truman Memorial Veterans Hospital, detailing his on-going mental and physical health treatment goals. * Exhibit P - an addendum to his affidavit, detailing his experiences and post- service PTSD diagnosis, symptoms, and effects. 8. 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. 9. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting reconsideration of his previous requests for an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. He contends he had a mental health condition that mitigated his discharge, PTSD. 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 27 September 1990; 2) The applicant arrived in Southwest Asia on 11 January 1991, and he was involved in Scud Missile attack on 25 February 1991; 3) On 5 March 1992, the applicant was formally counseled by his commander for his recommended separation for a pattern of misconduct. The misconduct occurred between 09 July 1991-21 February 1992. The misconduct included: traffic violations, failure to be at appointed place and time, absent from accountability formation, not being clean shaven, failing an Army Physical Fitness Test (APFT), and possessing an unregistered and loaded weapon and attempting to conceal the weapon; 4) On 2 September 1992, the applicant voluntarily requested discharge, Chapter 10, for the good of the service – in lieu of trial by court-martial. He acknowledged he was guilty of the five specifications of forgery, two specifications of altering identification cards and conspiracy; 5) On 23 September 1992, the applicant was discharged with a Chapter 10, for the good of the service – in lieu of court-martial, and his service was characterized as UOTHC; 6) On 17 April 2007, the Army Discharge Review Board denied the applicant's petition for an upgrade; 7) The ABCMR denied the applicant's petitions for correction of his records on 17 August 2007 and 27 August 2019. The applicant had requested to show he was awarded the Soldier’s Medal and/or the Purple Heart; 8) The ABCMR denied the applicant’s petitions for an upgrade of his UOTHC discharge on 05 February 2008 and 11 February 2021. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) and hardcopy VA treatment records were also reviewed. d. The applicant asserts he was experiencing PTSD as a result of a Scud Missile attack his unit experienced on 25 February 1991. The applicant did not have a record of behavioral health treatment while on active service. He did provide multiple documents from various licensed behavioral health providers from the Truman VA located in Columbia, Missouri that he meets criteria for PTSD, which they attribute to his experiences during his active service. Since 07 September 2018, the applicant was awarded service connection for treatment purposes only for trauma-stress-related disorder with depression. JLV also provided additional evidence that the applicant has been actively engaged in behavioral health treatment for PTSD since 2018. e. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is sufficient evidence to support the applicant had condition or experience that partially mitigated his discharge. Kurta Questions A. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing PTSD that contributed to his misconduct. B. Did the condition exist, or experience occur during military service? Yes, the applicant contends his PTSD occurred while on active service. C. Does the condition experience actually excuse or mitigate the discharge? Partially, there is sufficient evidence the applicant did experience a potentially traumatic event while on active service and was likely experiencing resultant PTSD. There is a nexus between PTSD and erratic behavior. Some of the applicant’s misconduct such as: traffic violations, failure to be at appointed place and time, absent from accountability formation, not being clean shaven, and failing an APFT could be mitigated by his diagnosis of PTSD. However, there is no nexus between PTSD and possessing an unregistered and loaded weapon, attempting to conceal the weapon, forgery, altering identification cards, and conspiracy given that: 1) this type of misconduct is not part of the natural history or sequelae of PTSD; 2) PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. However, the applicant contends his diagnoses resulted in his misconduct, and per the Liberal Consideration Policy, his contention is sufficient for consideration. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service to include deployment, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA Medical Advisor. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being fully mitigated by PTSD. Based on a preponderance of evidence, the Board determined 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Numbers AR20070011670 and AR20190008962 on 5 February 2008 and 11 February 2021. 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 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. 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of Department of Veterans Affairs (VA) benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An UOTHC discharge was normally considered appropriate. 3. 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 post-traumatic stress disorder (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. 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. 5. 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) AR20220006621 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1