IN THE CASE OF: BOARD DATE: 19 January 2023 DOCKET NUMBER: AR20220006633 APPLICANT REQUESTS: in effect, an upgrade of his under other than honorable conditions (UOTHC) characterization of service. 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) * character references * military service records 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 makes no statement, but his DD Form 149 indicates that his request is related to his participation in a contingency operation, post-traumatic stress disorder (PTSD), and other mental health conditions. 3. The applicant enlisted in the Regular Army on 23 October 2002. The highest rank/grade he held was specialist/E-4. The record is void of evidence of his participation in any contingency operations. 4. He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on: * 14 March 2004, for failing to go at the time prescribed to his appointed place of duty on two occasions * 29 July 2004, for failing to go at the time prescribed to his appointed place of duty and disobeying a lawful order from a noncommissioned officer * 12 January 2004, for failing to go at the time prescribed to his appointed place of duty and being absent without leave (AWOL) from 31 December 2003 to 5 January 2004 * 2 March 2006, for driving under the influence 5. The applicant was the subject of an investigation regarding the wrongful use of a controlled substance after admitting to using marijuana on 24 April 2006. The investigation found there was sufficient evidence to prosecute the applicant. A Criminal Investigation Division Report, dated 28 April 2006, shows the applicant provided a urine sample which revealed the presence of marijuana. 6. On 27 April 2006, he underwent a separation physical which found him qualified for service. 7. Court-martial charges were preferred against the applicant on 9 June 2006, for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with – * failing to obey a lawful order from a commissioned officer * escaping from custody of a Department of the Army (DA) Civilian Police Officer * resisting apprehension by a DA Civilian Police Officer * fleeing apprehension by running from a DA Civilian Police Officer * wrongful use of marijuana between on or about 27 February 2006 and 28 March 2006; and on or between 14 April 2006 and 15 May 2006 8. On 4 May 2006, he underwent a mental status evaluation which found the applicant had the mental capacity to understand and participate in separation proceedings, he was mentally responsible, and he met retention requirements of Army Regulation (AR) 40-501 (Medical Services-Standards of Medical Fitness), chapter 3. The mental health provider noted that the applicant did not report any significant mental health problems, however, he reported a history of alcohol abuse. The applicant was cleared to participated in Chapter 14 proceedings. 9. The applicant consulted with legal counsel on or about 9 June 2006. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of AR 635-200 (Active Duty Enlisted Administrative Separations), Chapter 10, 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 VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 10. The separation authority approved the applicant's request for discharge on 12 June 2006, under the provisions of AR 635-200, Chapter 10, in lieu of court- martial, and directed his reduction to the lowest enlisted grade and the issuance of a UOTHC discharge. 11. The applicant was discharged on 22 June 2006, under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. The DD Form 214 he was issued confirms he completed 3 years, and 8 months of net active service and his service was characterized as UOTHC. This form does not list any combat awards, deployments or foreign service. 12. The applicant provides: a. Several character references that attest to the applicant's many attributes which include patience, positivity, humility, and being remorseful for his past mistakes. Some mention the applicant being involved in combat operations in Iraq and not being the same person after returning from deployment. b. His service records which include enlistment contracts, letters of reprimand, separation documents, Article 15's, counseling forms, investigation reports, arrest records, and urinalysis results. 13. 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 AR 635-200, chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 14. The applicant did not provide evidence of a mental health diagnosis. 15. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 16. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) discharge. He contends he had mental health conditions that mitigated his misconduct, PTSD and other mental health conditions. 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 into the Regular Army on 23 October 2002; 2) The applicant accepted nonjudicial punishment (NJP) on 12 January 2004 for being AWOL for 6 days; 3) On 14 March 2004, he accepted NJP for failing to report on two occasions; 4) On 29 July 2004, he accepted NJP for failure to report and disobeying a NCO; 5) He accepted NJP on 02 March 2006 for driving under the influence; 6) Court-martial charges were preferred against the applicant on 9 June 2006 for: A) failing to obey an order from a commissioned officer; B) escaping from custody of a DA civilian police officer; C) resisting apprehension from a DA Civilian Police Officer; D) wrongful use of marijuana on multiple occasions; 7) The applicant was discharged on 22 June 2006 with a Chapter 10, in lieu of trial by court-martial, and his service was characterized as UOTHC. c. The Army Review Boards 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. d. The applicant reported experiencing PTSD and other mental health disorders while on active service that mitigated his misconduct. There was insufficient evidence beyond self-report that the applicant deployed to an area of combat. There was no other report of a potentially traumatic event. The applicant was seen for a Mental Status Evaluation on 04 May 2006 in relation to his chapter proceedings. The applicant was diagnosed with a phase of life problem, alcoholism, and cannabis abuse. He was cleared for administrative action. JLV was void of behavioral health records, and the applicant receives no service-connected disability. The applicant did not provide any civilian behavioral health documentation. e. Based on the available information, it is the opinion of the ARBA Medical Advisor that there is insufficient evidence to support the applicant had a condition or experience that mitigated his misconduct. 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 and other mental health disorders. B. Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing PTSD and other mental health conditions while in active service. C. Does the condition experience actually excuse or mitigate the discharge? Partially. There is insufficient evidence that applicant meets criteria for PTSD or other mental health disorder. However, PTSD and other mental health disorders can be correlated with avoidant and erratic behavior, and there is a nexus between these disorders and going AWOL, not reporting on time, disobeying orders, and substance abuse. However, there is no nexus between his reported mental health conditions and driving under the influence, resisting apprehension, and escaping from a police officer given that: 1) this misconduct is not part of the natural history or sequelae of his reported mental health conditions; 2) they do 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, 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 the letters of reference provided by the applicant insufficient in support of a clemency determination considering the serious nature of his misconduct. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding there being no nexus between the bulk of his misconduct and his reported mental health conditions. 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 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, United States 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 Army Board for Correction of Military Records (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 ((Active Duty Enlisted Administrative Separations), sets forth the basic authority for the separation of enlisted personnel. 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 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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. 4. 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) AR20220006633 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1