IN THE CASE OF: BOARD DATE: 17 February 2023 DOCKET NUMBER: AR20220006916 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions (UOTHC) discharge to an under honorable conditions (general) discharge, and a personal appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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, in effect, he was 18 years old when he joined and was subjected to boot camp, advanced individual training, and sent to the Gulf War. Once he arrived, he was attached to a Reserve unit that he was unfamiliar with, which was a bit much mentally. He has been having flashbacks and mental breakdowns but is unable to receive help from the Department of Veterans Affairs due to his UOTHC discharge. The applicant noted on his application, that post-traumatic stress disorder (PTSD) was related to his request; however, he did not provide supporting documentation. 3. The applicant's service records are missing pertinent information; however, the available records show: a. On 20 July 1990, the applicant enlisted in the Regular Army for a 5-year service obligation. Upon completion of training, he was awarded military occupational specialty 29N (Switching Central/Telephone Center Office Repairer). He served in Southwest Asia from 20 February 1991 through 27 April 1991. b. On 28 April 1991, he was reassigned to Germany, where he arrived on or about 20 May 1991. He was reassigned from Germany to Fort Knox, KY, on 8 July 1992 and was promoted to Specialist/E-4 on 20 September 1992, which was his highest grade held. c. On 29 January 1994, court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) show he was charged with the following offenses, on or about 9 January 1994: * unlawfully strike another Soldier in the face with closed fists * assaulting another Soldier by striking him on the head and hands with a dangerous weapon [a stick] * conspiring with Specialist to enter the barracks room of another Soldier and commit aggravated assault with a dangerous weapon by striking him repeatedly with a stick and a cane d. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, his DD Form 214 (Certificate of Release or Discharge from Active Duty), confirms he was discharged on 1 March 1994, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, in lieu of trial by court-martial. He was separated in the lowest enlisted grade, with an UOTHC discharge characterization. He was credited with completing 3 years, 7 months, and 12 days of net active service this period. He was awarded or authorized the Southwest Asia Service Medal (2 Bronze Stars), Army Achievement Medal, National Defense Service Medal, Army Service Ribbon, the Kuwait Liberation Medal, and a marksmanship badge. 4. The absence of the applicant's separation packet means the Board is unable to determine the specific circumstances surrounding his discharge. However, because the Board has the applicant's DD Form 214, it must presume administrative regularity, meaning unless there is proof to the contrary, the Board assumes the Army's actions were administratively correct. As stated in ABCMR's governing regulation, the Board is not an investigative body, and the applicant bears the responsibility for providing evidence to validate that an error occurred in the processing of his separation. 5. The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no evidence that would indicate the contrary. 6. The available record is void of and the applicant has not provided documentation to support his contention of having a mental health condition during his period of service. 7. Published guidance to the Service Boards for Correction of Military/Navy Records (BCM/NR) 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. 8. MEDICAL REVIEW: a. The applicant is applying to the Army Board for Correction of Military Records (ABCMR) for an upgrade of his under other than honorable conditions (UOTHC) discharge to an under honorable conditions (general) discharge. He contends he had a mental disorder that mitigated his misconduct. 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 20 July 1990; 2) He served in Southwest Asia from 20 February-27 April 1991; 3) On 29 January 1994, court-martial charges were preferred against the applicant for: A) unlawfully striking another Soldier; B) assaulting another Soldier; C) conspiring with another Soldier to enter the barracks room of another Soldier and commit aggravated assault with a dangerous weapon; 4) The applicant’s record is void of a separation packet. However, his DD214 confirms he was discharged on 01 March 1994, Chapter 10, in lieu of trial by court-martial with an UOTHC discharge characterization. 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 examined. d. The applicant asserts he was experiencing a mental health condition during his active service which mitigated his misconduct. He also noted on his application that PTSD was related to his request. The applicant did deploy to Southwest Asia, and he was awarded two Bronze Stars. Therefore, there is some evidence the applicant could have been exposed to potentially traumatic events. However, there was no evidence the applicant reported mental health symptoms while on active service. JLV was void of behavioral health treatment records, and the applicant receives no service-connected disability. The applicant did not provide any civilian documentation of a behavioral health condition. e. Based on the available information, it is the opinion of the Agency BH Advisor there is insufficient evidence to support the applicant had 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 that contributed to his misconduct. B. Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing PTSD while on active service. C. Does the condition experience actually excuse or mitigate the discharge? No, there is insufficient evidence the applicant was experiencing PTSD while on active service. In addition, there is no nexus between PTSD and the applicant’s misconduct given that: 1) this type of misconduct is not part of the natural history or sequelae 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 he was experiencing a mental health condition that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and available medical records, the Board concurred with the advising official finding insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. The Board determined based on evidence in the record, there is insufficient evidence the applicant was experiencing PTSD while on active service. In addition, there is no nexus between PTSD and the applicant’s misconduct given that: 1) this type of misconduct is not part of the natural history or sequelae PTSD; 2) PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. 2. Furthermore, the Board determined the applicant provided no post service achievements or character letters of support for consideration to show honorable conduct that might have mitigated the discharge characterization. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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. Therefore, relief was denied. 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 3. 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. 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 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. 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) AR20220006916 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1