IN THE CASE OF: BOARD DATE: 28 February 2023 DOCKET NUMBER: AR20220007045 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions (general) or honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Medical Assessment Note, dated 17 December 2021 * Medical Note from Health –dated 18 February 2022 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), Section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he has been diagnosed with military related post-traumatic stress disorder (PTSD) and tinnitus. He is unable to receive help from the military because of the status of his discharge/separation from the service. He recently was able to go to the doctors to receive a little help for these issues medically, but it was military related, and he would like to receive care through the Veterans Affairs (VA) and disability. His separation was civilian related, not related to the military and was a complete accident. He served his time for this issue. The applicant notes PTSD and other mental health issues are related to his request. 3. The applicant enlisted in the Regular Army on 7 December 1982 for 3 years. Upon completion of training, he was awarded military occupational specialty 11M (Fighting Vehicle Infantryman). 4. On 29 August 1985, the applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice, for being absent without leave from on or about 3 July 1985, to on or about 25 July 1985. His punishment included reduction to E-3, forfeiture of $100, restriction for 20 days, and extra duty for 45 days. 5. On 30 October 1985, the applicant was arrested by the Police Department and charged with murder. 6. Before a civilian court on 26 February 1986, at the applicant was found guilty of committing the offense of murder on 3 August 1985. The court sentenced him to 25 years confinement in the State of Corrections. 7. The applicant's immediate commander notified him on or about 6 March 1986, that he was initiating actions to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, citing the applicant's civil conviction for murder. 8. On the same date, the applicant consulted with counsel and was advised of the basis for the contemplated separation action, the possible effects of the discharge, and the rights available to him. He indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him. He declined to submit a statement in his own behalf. 9. On 14 March 1986, the applicant's immediate commander formally recommended his separation under the provisions of AR 635-200, Chapter 14, based on conviction by civil court. 10. Consistent with the chain of command's recommendation, the separation authority approved the recommended discharge on 9 June 1986 with the issuance of an UOTHC discharge. 11. The applicant was discharged on 30 June 1986. His DD Form 214 confirms he was discharged under the provisions of AR 635-200, Chapter 14, Section II, for civilian conviction. His service was characterized as UOTHC (Separation Code JKB and Reentry Codes 3/3B/3C). He completed 2 years, 10 months, and 1 day of net active service this period. He was awarded or authorized the Army Service Ribbon, Sharpshooter Badge (Rifle/Hand Grenade), and the Parachutist Badge. 12. The applicant provides medical documentation that shows a diagnosis of PTSD and tinnitus. These notes are provided in their entirety for the Board’s review within the supporting documents. 13. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 14. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his UOTHC discharge to general or honorable. 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) Applicant reports he has been diagnosed with military related PTSD and tinnitus. He would like to receive care through the VA and disability. The applicant notes PTSD and other mental health issues related to his request. (2) He enlisted in the RA on 7 December 1982, (3) On 29 August 1985 he received NJP for being AWOL on/about 3 July 1985 to on/about 25 July 1985. (4) On 30 October 1985 he was arrested by police and charged with murder. Records indicate he was subsequently found guilty of committing the offense of murder. (5) The applicant was discharged on 30 June 1986. His DD214 confirms he was discharged under AR 635-200 Chapter 14 for civilian conviction, UOTHC. c. Supporting Documents All supporting documents reviewed. Lack of citation or discussion in this section should not be interpreted as lack of consideration. DD Form 149 references PTSD and other mental health conditions associated with application. WRIISC Assessment Note dated 17 December 2021 appears to be partially redacted and includes diagnosis of complex PTSD, Major Depressive Disorder and Generalized Anxiety Disorder. Evaluation references longstanding history of trauma beginning in childhood to include physical and emotional abuse by parents. He described accidentally shooting a civilian while in the armed forces, and apparently was witness to trauma while incarcerated. He was also in a mentally abusive marriage. Other documents refer to history of tinnitus, which will not be addressed by the agency psychologist. Available documents associated with his civil charge were reviewed and appreciated, as were available separation documents. d. AHLTA The Army electronic medical record, AHLTA, was not reviewed; it was not an existing EMR at the applicant’s time of service. e. JLV Available VA records were reviewed via JLV. There is no indication of any service-connected conditions, and his record is void of relevant clinical data. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant asserts PTSD and other mental health conditions associated with the circumstances of his discharge. (2) Did the condition exist or experience occur during military service? Yes. The applicant’s assertion is supported by records indicating a diagnosis of PTSD secondary to multiple factors including a history of pre-enlistment family trauma, as well as Major Depressive Disorder and Generalized Anxiety Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. Presumptive PTSD and other mental health conditions at the time of service, based on applicant’s assertion and provided medical documentation, would not mitigate the civilian conviction for murder which led to his discharge from the US Army. PTSD, Major Depression, and/or Generalized Anxiety, even if present at the time of service, would not impair one’s ability to differentiate right from wrong and adhere to the right, nor are such extreme violent behaviors part of the natural history and sequelae of these conditions. BOARD DISCUSSION: The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was discharged from active duty due to misconduct - civil conviction for murder. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The applicant asserts PTSD and other mental health conditions associated with the circumstances of his discharge. However, the Board agreed that presumptive PTSD and other mental health conditions at the time of service, based on applicant’s assertion and provided medical documentation, would not mitigate the civilian conviction for murder which led to his discharge from the Army. Even if present at the time of service, PTSD would not impair one’s ability to differentiate right from wrong and adhere to the right, nor are such extreme violent behaviors part of the natural history and sequelae of these conditions. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Section 1556 of Title 10, USC, 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. 3. Army Regulation 635-200 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 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. It states that action will be initiated to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. Paragraph 14-5 applied to a member considered for discharge when initially convicted by civil authorities and the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service BCM/NRs, on 3 September 2014, to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 5. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 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) AR20220007045 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1