IN THE CASE OF: BOARD DATE: 27 January 2023 DOCKET NUMBER: AR20220006635 APPLICANT’S REQUEST: The applicant requests reconsideration of his request for an upgrade of his characterization of service from under other than honorable conditions (UOTHC) to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement (3 pages) * responses to Army Review Board Agency (ARBA) request for medical evidence (2 via email and 2 via certified mail) (four) * Medical dictation, dated 18 May 1993 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 AR20190000705 on 9 June 2000. 2. The applicant states, in effect, his discharge should be upgraded because he was brought onto active duty without receiving proper training. He also indicated on his DD Form 149 that he suffers from post-traumatic stress disorder (PTSD) and tinnitus stemming from his military service. a. He was a Reserve Officers’ Training Corps (ROTC) cadet during his tenure at Tuskegee University. In the summer of 1991, during his junior year, he attended Advanced Camp at Fort Lewis, Washington. He contends that due to scoring poorly at camp, his ROTC cadre informed him that his services were no longer needed by the military and that they were only seeking cadets with technical degrees such as engineering and computer science. He was told he would be commissioned and sworn in, but he would never serve in a military uniform after December. This is when he first developed PTSD. b. Following the fake commissioning ceremony and oath, they all parted ways and he never received any correspondence from the Army. At the time, there were not many places where a biology major could be employed, so he relied upon his internships to be accepted directly into medical school in 1994. Two years had lapsed, and he still had not received any correspondence from the military. The Army had just abandoned him, which added to his PTSD. c. In 1999, he moved to to complete his internship at the University of Health Science in Fort Wort, Texas. When he arrived home one day, he noticed a vehicle occupied by four Soldiers parked across the street. He presumed it was a recruiting team of some sort because there were high school aged kids in the area. When he returned home the next day, there was a vehicle occupied by four Soldiers parked in front of his mailbox. As he approached, the Soldiers sprung out of the vehicle and asked if he was Lieutenant [the applicant]. They then told him he was hereby remanded by the Army and had him sign a document. He was advised a moving van would arrive within 48 hours to pack his personal belongings and ship his vehicle. He was further advised that when he attended graduation in the following week, Colonel (COL) from Tripler Army Medical Center (TAMC) would be there to commission him and to make sure he got on his flight to his duty station in Hawaii. So, in essence, the Army was kidnapping him. d. After telling him that the Army did not want him because he was majoring in biology and scored poorly at Advanced Camp, the Army was now interested in him because he was a physician with a lucrative and promising career. The Army should have never turned their backs on him, but now that he was going to be rich and successful, they wanted to forget how they had treated him. Before he even served one day on active duty, he had already experienced abuse, neglect, separation, judgmental bias and prejudice, harassment, and all types of mental anguish from military personnel ordering him to leave his home in 48 hours. He experienced full-blown PTSD just trying to remember how to put on a military uniform. e. On top of this, they forced him onto active duty with no military occupational specialty (MOS) training and told him he was a physician, figure it out. The Army had him conducting minor surgery on Soldiers that he was not trained to perform. He was never trained a Fort Sam Houston, Texas where the Army sends all medical Soldiers, he bypassed that, and went straight to TAMC and started performing surgery. He did not even know his MOS until he saw it on his DD Form 214 (Certificate of Release or Discharge from Active Duty). 3. A DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract), dated 5 September 1989, shows the applicant entered the ROTC program as a cadet at Tuskegee University, Tuskegee Institute, Alabama. In doing so, he acknowledged his understanding of the contractual agreements and obligation of the program to include: * He was enlisting for a period of eight years in the U.S. Army Reserve (USAR) as a cadet for assignment to the USAR Control Group (ROTC) * He must successfully complete, within the prescribed time, the requirements for a degree in Biology * Upon completion of all requirements for appointment to include all prescribed military science courses, Advanced Camp and any other training prescribed, he agreed to: * accept an appointment, if offered, in either the Regular Army (RA), USAR, or Army National Guard (ARNG) * serve two, three, or four years, on active duty as a commissioned officer in the United States Army based on the needs of the Army followed by service in the USAR until the remainder of his eight-year military obligation * he could not voluntarily withdraw from the scholarship program without incurring an active duty and reimbursement obligation after the first day of Military Science II class (sophomore year) 4. On 26 September 1989, he enlisted in the USAR for a period of eight years as a cadet in USAR Control Group (ROTC). In doing so, he understood that, if he was selected for appointment, he would be expected to accept assignments in the best interest of the service. 5. A DA Form 61 (Application for Appointment), dated 22 August 1991, shows he requested appointment as a three-year ROTC scholarship recipient. This form indicates he successfully completed ROTC Basic Camp and Advanced Training and that he would attain full qualification, and should be appointed on 31 July 1992. On 21 December 1992, he was appointed as a Reserve Commissioned Officer of the Army in the rank of second lieutenant in the Medical Services corps. 6. On 11 August 1994, the applicant requested to delay entrance on active duty from August 1994 until June 1999 so he could pursue full-time graduate study leading to a Doctor of Osteopathy degree in the field of Osteopathic Medicine at the New York College of Osteopathic Medicine of New York Institute of Technology, Old Westbury, New York. a. His DA Form 591 (Application for Initial (Educational) Delay from Entry on Active Duty and Supplemental Agreement) shows an approved delay was subject to several conditions, including in part: * determination as to whether he would serve on active duty or active duty for training as set forth in the supplemental agreement rested with the Army * at the end of the delay period, a branch of service would be assigned that was consistent with his postgraduate discipline and military requirements * the delay would begin August 1994 * the availability date for active duty was June 1999 * unless further delay was authorized, active duty would be scheduled as soon as possible after June 1999 * his request was approved on 26 September 1994 b. His DA Form 591-3 (ROTC Supplemental Service Agreement for Special Medical Program Participants) shows he understood that in consideration of his request for educational delay as a special medical program participant he must comply with the following service requirements if his request was granted, in part: * to be considered a participant in the Medical Service Early Commissioning Program * if pursuing a degree in osteopathy, to accept appointment in the Medical, Dental, or Veterinary Corps upon graduation, if offered * he was volunteering to enter on active duty when and if his service were required * if delayed to pursue a degree in osteopathy, he would serve on active duty for a period of three consecutive years * if he received Army scholarship assistance while participating in the ROTC program, he would serve on active duty for a period of from two to five consecutive years as stipulated in his ROTC contract 7. He was promoted as a Reserve Commissioned Officer of the Army to the rank/grade of first lieutenant/O-2 on 20 December 1995. 8. He was appointed as a Reserve Commissioned Officer of the Army in the rank/grade of captain (CPT)/O-3, effective 24 May 1999. As a medical officer, he was credited with four years of constructive service in an active status. This service credit was not valid for pay entry basic date and was not the result of prior military service. The applicant's DA Form 71 (Oath of Office) was administered on 24 May 1999. 9. The applicant was ordered to active duty in the rank of CPT as an obligated volunteer officer for a period of five years in order to fulfill his active duty requirement. He was assigned to TAMC, Honolulu, Hawaii with a reporting date of 5 June 1999. His active duty commitment included incurred obligation and one year of internship training for first year graduate medical education program in transitional, beginning 1 July 1999. 10. The applicant's House Staff Evaluation Reports (HSER) and Academic Progress Counseling memorandum rendered for the period of July – December 1999 show he was counseled because of his receipt of poor academic evaluations on two of the first three rotations and the possibility he could be subjected to probationary action. a. The major problem areas identified by his evaluators were his below average basic medical knowledge and his below average diagnostic abilities. b. The applicant expressed disappointment in his low evaluation scores but acknowledged his background in ward medicine was weak. He expressed a strong desire to improve his performance and his evaluations indicated his willingness to work hard. c. The applicant was reminded of the availability of psychiatric assessment if he desired. He denied any personal or language problems that might be interfering with his academic performance and requested academic assistance when offered. 11. The applicant's DA Form 67-9 (Officer Evaluation Report (OER)) for the period of 1 July 1999 through 3 January 2000 shows he received unfavorable ratings from both his rater and senior rater while serving as a transitional intern. a. The rater opined the applicant did not exhibit the Army Values of selfless-service or duty. He did not show tactical proficiency, meet mission standards, or take care of people/resources. The rater indicated the applicant's performance was unsatisfactory and recommended that he not be promoted. The rater noted the applicant had been reassigned to non-medical duties at his request. He recommended the applicant be offered retraining for postgraduate year-I medical education level. b. The senior rater opined that the applicant had no potential for promotion and gave him an overall rating of "Below Center of Mass Do Not Retain." He stated that although the applicant was an intelligent and extremely hardworking officer, he was ill prepared for the academic demands of ward-based medicine required of his internship year. The applicant's decision to resign from Internship was based on his perception that he was not competitive for further medical training in the Army and was contrary to the advice from his program director and other senior medical leaders. It was unlikely that the applicant would be offered another internship in Army Medicine. Because of this, he had no potential for retention in the Medical Corps. 12. On 10 January 2000. The Director of Medical Education, TAMC, Hawaii, rendered a memorandum addressed to the commander of TAMC, Hawaii, subject: Resignation from Transitional Internship by [the applicant]. He advised the commander that: a. [The applicant] enrolled in ROTC in college [as a bonus recipient] and thereby sustained an active-duty Army obligation. b. [The applicant] then attended an osteopathic medical school in . He did not receive military scholarship aid in medical school. It appeared that he scheduled less intense, outpatient rotations during his clinical years. c. [The applicant] arrived at TAMC in June 1999. He subsequently had difficulty with almost all clinical rotations and failed 3 or 5. As soon as his academic deficiencies were identified, he was counseled, and efforts were made to assist him. A mentor was appointed for each rotation. d. Despite intensive efforts by himself and TAMC Staff, [the applicant] proved himself unable to manage patients. He could not present clinical issues clearly and was unable to formulate logical treatment plans. e. In November 1999, [the applicant] was placed on internal probation by the Transitional Year Institutional Coordinating Committee. When he failed to improve during the following Urology rotation, he was recommended for TAMC Probation by the Graduate Medical Education Subcommittee. f. It was important to emphasize that [the applicant's] problems did not stem from lack of effort. He had consistently appeared to be trying diligently to improve his performance. Because of concern about an undiagnosed learning disability, the Director recommended that he seek psychological testing, when the Director counseled him about hospital probation. He chose not to be tested. It was also important to note that [the applicant] possessed excellent military bearing but barely failed the Army Physical Fitness Test (APFT) in August 1999. g. Three days after being placed on probation on 10 December 1999, [the applicant] met with the Director to discuss his options. The Director advised him that he could discuss his academic problem with Psychology, Judge Advocate General, Inspector General, a Chaplain, or anyone else he chose. h. On 20 December 1999, [the applicant] sent an email message to Lieutenant Colonel O (Transitional Year Program Director) and the Director voluntarily resigning his internship. Despite additional counseling, he remained steadfast in his decision. i. [The applicant] desired early separation from the Army (Release from Active Duty REFRAD)). He would agree to repay the money the government invested in him for ROTC. He felt he had no possibility of success in the Army and stated that he had arranged a civilian residency program (to begin in July 2000). j. In the Director's opinion, [the applicant] lacked the knowledge and skills needed to succeed as an Army physician. Even with enormous effort, he doubted that they would ever be able to create a physician capable of functioning at even the General Medical Officer (GMO) level. k. Army Personnel Command (PERSCOM) would need to evaluate his request for REFRAD versus reclassifying him to another branch. [The applicant] was aware that there was no guarantee that PERSOM would make a decision favorable to him. 13. Between 15 and 21 March 2000, the applicant exchanged email correspondence with Major (MAJ) and Lieutenant Colonel (LTC) wherein he expressed his desire to be transferred from the Clinical Support Division to Chapel Services. The applicant said he found himself wandering over to the chapel, sitting, reading, and reflecting over the events that had occurred, and it was the only place he experienced a somewhat quiet calm. MAJ replied that it could not be much calmer than the applicant's office area had been. The applicant stated he felt he was being mistreated, harassed, and a victim of a "good ol' boy" plot to derail his career, which is what led to him requesting to resign. He went on to explain the reasons for his belief and named the individuals he believed were conspiring against him. These emails are available in their entirety for the Board's consideration. 14. The applicant was counseled on the following dates for the reasons shown: * 21 March 2000: * tendency of disappearing from his place of duty during the duty day * failing the APFT for the second time in March 2000 * reporting late for work * taking excessively long lunch breaks * displaying a lack of initiative * mediocre and substandard duty performance * 22 March 2000: * failing to attend special population physical training (PT) as directed by his supervisor * reporting for work late * he was advised that continued behavior of this nature would result in disciplinary action 15. The applicant's OER for the period of 4 January 2000 through 20 April 2000 shows he received unfavorable ratings from his rater. His senior rater was unable to evaluate him because he had not been his senior rater for the required time period. The rater opined the applicant did not exhibit the leader attributes/skills/action of mental and physical. It was noted that he failed the APFT in April 2000. The rater indicated the applicant's performance was satisfactory but was hampered by his lack of enthusiasm and initiative. He had made minimal progress in the command's remedial physical fitness program. His potential was limited by his own attitude. He expressed no desire to be in the Army and should be separated from the service at the earliest possible date. 16. On 29 August 2000, the applicant was counseled regarding his duties and responsibilities while assigned to Clinical Support Division, TAMC, and advised that if his misbehavior continued, action could be initiated to administratively separate him from the Army under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges). The applicant acknowledged the counseling and stated, "I will perform all duties after I've attended the Officer's Basic Course (OBC)." 17. A Memorandum for Record, dated 30 August 2000, shows the applicant's immediate commander documented a meeting with the applicant and a timeline of events pertaining to the applicant's misconduct and the corrective actions that had been taken to date. The commander noted the applicant's supervisor had requested disciplinary action be imposed upon the applicant in accordance with the Uniform Code of Military Justice (UCMJ). The commander noted the applicant had already received a Letter of Reprimand from COL and had been counseled several times by LTC for not coming to work. He highly recommended pursuing nonjudicial punishment under the provisions of Article 15, of the UCMJ or more severe action against the applicant. He listed the following reasons: * violating several direct orders * being absent without leave (AWOL) * failure to repair * missing movement * conduct unbecoming of an officer 18. A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) shows on 17 October 2000, Major General informed the applicant she was considering whether he should be punished under Article 15, of the UCMJ for willfully disobeying a lawful order from a superior commissioned officer on or about 30 August 2000 and for without authority, failing to go at the time prescribed to his appointed place of duty on or about 21 March 2000. On 24 October 2000, the applicant declined to accept the nonjudicial punishment and demanded trial by court-martial. 19. The applicant was subsequently counseled on 14, 17, and 28 November 2000 for numerous incidents of arriving late for work, departing work early, not reporting for work, refusing to answer the phone, taking extended lunch breaks, and failing to perform tasks as specified. 20. A Memorandum for Record, dated 3 January 2001, shows the applicant's immediate commander documented a meeting with the applicant wherein they discussed the applicant's failure to show up for work and his recent marriage to an enlisted Soldier. When asked if he was aware of the Army's policy on fraternization, he stated he felt it did not apply to him because they were dating prior to 1 March 2000 and nowhere in the regulation did it say he needed to terminate the relationship. 21. A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against the applicant on 24 January 2001. The charge included 21 specifications of violation of Article 86, of the UCMJ, by failing to go at the time prescribed to his appointed place of duty during the period of on or about 21 March 2000 through 28 November 2000. His chain of command recommended a General Court-Martial (GCM). 22. On 26 January 2001, the applicant submitted a memorandum requesting to voluntarily resign for the good of the service in lieu of GCM under the provisions of Army Regulation 600-8-24, Chapter 3. He stated he did not desire to appear before a court- martial or board of officers, that he had not been subjected to coercion with respect to this and had been advised of and fully understood the implications of this action. He further understood that this resignation, if accepted, could be considered as being UOTHC and the impact of such a discharge on his eligibility for Veteran's benefits. 23. On 26 January 2001, the applicant addressed a memorandum through his chain of command to Commander, PERSCOM, Alexandria, Virginia. He respectfully requested approval of his resignation request with either an honorable or general, under honorable conditions discharge. The applicant contended that following his graduation from medical school he never attended the OBC. He resigned from his internship because he felt he was not receiving proper training and counseling. Despite his resignation, he fully intended to satisfy his obligation to the Army or to repay any money he owed the Army based upon his three-year ROTC scholarship. Following resignation from his internship, he was reassigned to work in the Clinical Services Division where he was not assigned any duties nor provided any training to perform the duties of that office. He was not even expected to be in the office by his supervisors because they knew how to contact him if necessary. Beginning in March 2000, his relationship with his supervisors began to worsen and no one in his chain of command ever told him what was going to happen to him, he was simply in limbo and doing nothing of value. As time went by, he realized the Army was not the place for him because his chain of command had not taken appropriate steps to deal with his situation. He had a promising future, but not with the Army. 24. On 31 January 2001, the applicant sent an email to his immediate commander wherein he stated, in part, that on or about 22 December 1999 he willingly resigned his Army commission and offered to monetarily repay everything he owed the military. Since then, all he had heard regarding his situation were lies and threats and it had numbed him to a point that he did not care. He stated, "I will make it plain, I no longer care about your threats of court-martial and Article 15s and direct orders from superior officers and counseling statements." 25. The applicant's immediate commander and two intermediate commanders recommend disapproval of his request to resign in lieu of court-martial on 1, 2, and 7 February 2001, respectively. 26. A DD Form 458 shows additional court-martial charges were preferred against the applicant on 8 February 2001. The charges and specifications included: * one specification of violation of Article 86, of the UCMJ, by without authority, absenting himself from his unit on or about 1 February 2001 and remaining so absent until on or about 8 February 2001 * six specifications of violation of Article 90, of the UCMJ, by willfully disobeying lawful commands on numerous occasions during the period of on or about 25 January 2001 and 1 February 2001 27. A DD Form 457 (Investigating Officer's Report), dated 1 March 2001, shows an investigation was conducted and adjourned on 27 February 2001. In part, it was explained that the Internship Program is a basic requirement for all Medical Corps officers before they can become a basic Army physician or general practitioner. If an intern drops out of a program, they cannot fulfill their obligation. PERSCOM is advised of the fact that they resigned from the program. If they resigned with an obligation, PERSCOM considers them for a branch transfer. There is a lengthy procedure at PERSCOM to rebranch an officer and it typically takes from four to six months. The time it takes to rebranch an officer usually depends on the officer's capability and attitude. The only Army Medical Department branch the applicant could qualify for is the Medical Service Corps. The applicant's request for a REFRAD was disapproved by PERSCOM due to his active duty service obligation. The applicant needed to be gainfully employed while PERSCOM worked to identify a branch for which he was suitable. In the interim, he was assigned to work in the Clinical Support Division where he could perform administrative duties. When PERSCOM realized the applicant had disciplinary problems, no branch wanted to accept him. 28. On 1 March 2001, the applicant's counsel submitted a memorandum through the Commander, 25th Infantry Division (Light) and United States Army Hawaii (USARHAW), Schofield Barracks, Hawaii to Commander, PERSCOM, Alexandria, Virginia on behalf of the applicant. Counsel emphasized the fact that following his resignation from the Internship Program, the applicant had been assigned to perform basic administrative duties that were demeaning and monotonous for someone of the applicant's education level, such as answering phones. Although that was not a defense for his misconduct, it was an explanation for why the misconduct occurred. Knowing this, it was understandable why the applicant left work early, or showed up late, on some days. The applicant was placed in limbo when he resigned from his internship and his supervisors and commanders had acted inappropriately. Counsel opined that had the applicant been gainfully employed, none of the misconduct would have occurred. He was aware of the applicant's chain of command recommending disapproval of the applicant's request to resign in lieu of court-martial. He contended a court-martial conviction would have devastating effects on the applicant's ability to practice medicine in the future. Counsel asked that these mitigating factors be considered with respect to the applicant's resignation request. 29. A DD Form 458 shows additional court-martial charges were preferred against the applicant on 8 March 2001. His chain of command recommended referral of the charges to a GCM. The charges and specifications included: * one specification of violation of Article 86, of the UCMJ, by without authority, absenting himself from his unit on or about 14 February 2001 and remaining so absent until on or about 20 February 2001 * 27 specifications of violation of Article 86, of the UCMJ, by failing to go at the time prescribed to his appointed place of duty on numerous occasions during the period of on or about 1 December 2000 through on or about 27 January 2001 * 18 specifications of violation of Article 90, of the UCMJ, by willfully disobeying lawful commands on numerous occasions during the period of on or about 2 February 2001 through on or about 27 February 2001 30. On 21 March 2001, the Commander, 25th Infantry Division (Light) & USARHAW recommended approval of the applicant's request to resign for the good of the service in lieu of court-martial with a UOTHC discharge. 31. A review of the Army Review Boards Agency (ARBA) database shows on 2 May 2001, a Department of the Army Ad Hoc Military Review Board reviewed the applicant's voluntary resignation in lieu of elimination based on violation of Articles 86 and 90, of the UCMJ. On 3 May 2001, the Deputy Assistant Secretary of the Army (Review Boards) (DASA-RB) accepted the applicant's resignation in lieu of elimination based on misconduct and directed that he be discharged with a service characterization of UOTHC. 32. A U.S. Army Personnel Command message, dated 8 May 2001, shows the applicant's resignation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 600-8-24, Chapter 3, was approved with a discharge date of no later than 21 calendar days after the official notification of this action. 33. Orders and his DD Form 214 show the applicant was discharged from active duty on 6 June 2001 in the rank/grade of CPT/O-3. He was credited with completion of 1 year, 11 months, and 26 days of net active service this period. His DD Form 214 shows in: (1) block 24 (Character of Service) - His characterization of service was UOTHC. (2) block 25 (Separation Authority) - The authority for his separation was Army Regulation 600-8-24, Paragraph 3-13. (3) block 26 (Separation Code) - His Separation Program Designator Code was "DFS." (4) block 27 (Reentry Code) - His Reentry Eligibility (RE) Code was "NA" [Not applicable]. (5) block 28 (Narrative Reason for Separation) - The narrative reason for his separation was "In Lieu of Trial by Court-Martial." (6) block 29 (Dates of Time Lost During This Period) - He was credited with lost time from 14 February to 19 February 2001. 34. The applicant's record is void of any evidence showing he was diagnosed with PTSD or any other medical of behavioral health condition during his period of service. 35. The applicant petitioned the ABCMR for an upgrade of his discharge based upon his post-service accomplishments on 18 January 2012. On 26 April 2021, the Board considered his application under procedures established by the Secretary of the Army and denied his request for relief. 36. In response to an ARBA request for medical evidence in support of his petition, the applicant provides an unsigned dictation rendered by a doctor on 18 May 1993. The dictation was rendered because the applicant required a pre-employment physical for a job as a physical therapist. In part, the assessment and plan state the applicant would be monitored with conservative therapy for PTSD and all related symptoms thereof, post Army. The doctor noted the applicant was young and energetic with some emotional scars but was able to perform all tasks requested. 37. 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. 38. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 39. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's available records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant requests an upgrade of his characterization of service from Under Other Than Honorable Conditions to Honorable. He was previously denied in March 2009 and more recently in April 2021. Currently, he requests reconsideration of his previous request. He also mentioned compensation for PTSD and ringing in his ears (tinnitus). 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: The applicant entered service as a transitional intern (field surgeon) in the USAR 05Jun1999. On 10Jan2000, COL Director of Medical Education, Tripler AMC, endorsed the applicant's release from active duty. He opined that the applicant lacked the knowledge and skills needed to be an Army physician despite counseling and the applicant’s apparent effort. The applicant voluntarily resigned from his internship and was reassigned reportedly at his request to non-medical duties. Ultimately, he was separated on 06Jun2001 under provisions of AR 600-8-24, para 3-13, in lieu of trial by court-martial. The charges included multiple instances of the following: Being AWOL, willfully disobeying lawful commands, and failing to go at the time prescribed to his appointed place of duty. c. In February 2000, the applicant stated that he did not pass the physical training test. He also failed the APFT in March, April, and November 2000. No reason was noted for the failures to include a medical condition. OER covering the period from 20000421 to 20010420 showed he did not meet Army height weight standards. A medical diagnosis was not found in the available record that could be attributable to not meeting the standard. The 23Jun2001 Officer Record Brief showed PULHES 111111. The applicant did not report that any medical issue was impacting his performance or his ability to pass the APFT, during the numerous counseling sessions. d. The applicant submitted a 18May1993 dictation by Dr who endorsed a PTSD diagnosis. The applicant was being seen for a preemployment physical for a physical therapy job. The PTSD stressor appeared to be presented as “a botched commissioning and a termination from the Army within thirty minutes of being commissioned”. The basis for the PTSD diagnosis was undeveloped, to include that there was no mention of specific PTSD symptoms. In addition, the identified stressor would not reasonably be considered a traumatic event (for example, would not meet criteria A category of DSM-5). The treatment facility was not identified in the correspondence. The specialty and/or qualifications of the doctor were not provided. Eight years later, on 01Mar2001, the applicant through counsel contended that after resigning from the internship, his assigned duties (which consisted of answering telephones) were demeaning to a medical school graduate. This, in addition to growing frustration with not being assigned to a different branch/section was reported as the reason he left work early or showed up late on some days. Reportedly, his request to be assigned to work with the Chaplain’s section was denied. In the applicant’s 08Sep2022 email correspondence to ARBA, the applicant asserted that his PTSD developed due to maltreatment received in the ROTC and in the Army. He further stated that due to his PTSD condition, he has ongoing problems trusting authority in the workplace. e. The AHLTA record did not contain any service treatment records for a BH condition or Tinnitus. JLV search revealed that the applicant has NOT been service connected by the VA for any conditions. JLV search revealed post military DoD medical records starting in October 2003 for various diagnoses that did NOT include PTSD or Tinnitus. There were no BH treatment records, to include mental health provider visits, psychotropic medication, or mental health counseling. The 03Sep2014 Secretary of Defense Liberal Guidance Memorandum and the 25Aug2017, Clarifying Guidance were reviewed. Based on review of the applicant’s available records, medical evidence does NOT reasonably support that the applicant had PTSD, TBI, MST or other boardable mental health diagnosis during military service. While the applicant asserted that he was under a great deal of duress, there is no documented behavioral health condition to consider with respect to mitigation of his misconduct. Based on review of the applicant’s available records, evidence was insufficient to support that he had a medical condition or boardable mental health condition while he was in service; therefore, referral for medical discharge processing is not warranted at this time. Kurta Questions Did the applicant have a condition or experience that may excuse or mitigate the discharge? No Did the condition exist, or did the experience occur during military service? N/A Does the condition or experience actually excuse or mitigate the discharge? N/A 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 applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. 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 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 Number AR20190000705 on 9 June 2000. 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 the 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR is not an investigative body and decides cases based on the evidence presented in the military records provided and the independent evidence submitted with the application. 3. Army Regulation 600-8-24, in effect at the time prescribed policy and procedure governing transfer and discharge of Army officer personnel. a. Paragraph 1-16 states an officer pending court-martial charges or investigation with a review toward court-martial will not be separated without Headquarters, Department of the Army (HQDA) approval. b. Paragraph 1-22(a) states an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty, or the final revocation of a security clearance for reasons that do not involve acts of misconduct, for an officer. c. Paragraph 1-22(b) states an officer will normally receive an under honorable conditions characterization of service when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. Chapter 3 (Resignations) of the regulation prescribes the tasks, rules, and steps for processing voluntary resignations). Paragraph 3-13 (Rules for processing resignation for the good of the service in lieu of general court-martial) states an officer may submit a resignation for the good of the service in lieu of general court-martial if court-martial charges have been preferred against the officer with a view toward trial by general court-martial. An officer separated under this paragraph normally receives characterization of service of under other than honorable conditions. An officer who resigns for the good of the service (regardless of the character of service received) is barred from rights under laws administrated by the Veterans Affairs based on the period of service from which the officer resigned. e. Chapter 4 (Eliminations) of the regulation prescribes the process for elimination of an officer in the Army. Paragraph 4-1 (Overview) states an officer is permitted to serve in the Army because of the special trust and confidence the President and the nation have placed in the officer’s patriotism, valor, fidelity, and competence. An officer is expected to display responsibility commensurate to this special trust and confidence and to act with the highest integrity at all times. However, an officer who will not or cannot maintain those standards will be separated. 4. 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. 5. 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. 6. 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) AR20220006635 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1