IN THE CASE OF: BOARD DATE: 22 February 2023 DOCKET NUMBER: AR20220007320 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Character Letter * Physician Assistant Letter * Bureau of Investigation Letter 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 he is requesting the upgrade due to his duty position and a mistake. He states he was a chaplain’s assistant and served three years prior to this incident with no other issues. 3. The applicant enlisted in the Regular Army on 6 March 2001, for 4 years. His military occupational specialty was 56M (Chaplain’s Assistant). He reenlisted on 21 August 2004. 4. The applicant served in Germany from on or about 8 August 2001 to 28 November 2001 and in Iraq from on or about 5 April 2002 to 24 October 2002. 5. The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, Orders 171-000, dated 20 June 2005, issued by Schweinfurt Transition Center, Germany, reassigned him for transition processing and discharged him. 6. The applicant's DD Form 214 (Certificate of Release or Discharge from active Duty) shows he was discharged on 24 June 2005, under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), Chapter 10, in lieu of trial by court martial. His characterization of service was UOTHC. He completed 4 years, 3 months, and 19 days of net active-duty service. It also shows he was awarded or authorized the: Army Good Conduct Medal, National Defense service Medal, Global War on terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Army Service Ribbon, and Overseas Service Ribbon. 7. The applicant was charged due to the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial 8. The applicant provides: a. A self-authored statement that states, in pertinent part, while deployed to Iraq he was struggling psychologically from external factors at home. His spouse at the time was having an affair, got pregnant, and filed for divorce. While dealing with the stress of deployment and combat he spoke with the battalion chaplain about his concerns and struggles but nothing went further than that. As a result, he ended up taking some medication that was given to him by a peer that helped with insomnia. He did not know that this was a controlled substance. On the same day and while experiencing depression, insomnia, and being under the influence of medication he had taken, he was with a group of Soldiers and as they were taking items from the post exchange he was pressured to do so as well. He has regretted it since the day it happened. He believes he was pushed to a Chapter 10 of the (UCMJ) due to the high moral standards expected of someone serving in his MOS. After getting out of the military he has held many positions of leadership in successful companies and/or non-profits. He was recently accepted into Manhattan Christian College, and he is working towards obtaining his degree in Biblical Leadership Studies. b. A character letter that attests to the applicant’s ability to multitask, his passion to serve others and excellent moral character. He is a single father and works a job to financially support his family. c. A letter from Physician Assistant, dated 2 January 2022, states in the interview with the applicant he clearly recounts having a psychological breakdown during his deployment to Iraq after learning of his wife’s affair and leaving him while dealing with stressors of deployment. The applicant reports being unaware that medication given to him by a military colleague for insomnia, was in the benzodiazepine class of medications and experienced depressed mood, insomnia, and while under the influence of benzodiazepines he reported being peer pressured by one of his colleagues to shoplift. The applicant’s candid description of his mindset leading up to the events which resulted in his early discharge is suspicious of an underlying acute behavioral health condition caused by combat related stress and the stress of going through a divorce. The applicant was likely suffering from an adjustment disorder which was not considered by his leadership. d. A Bureau of Investigation, dated 25 January 2022, shows that a criminal history search for the applicant shows the applicant did not have a criminal record. 9. 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. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 10. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his discharge from UOTHC to 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 states he is requesting upgrade due to a duty position and mistake. He was a chaplain’s assistant and served 3 years prior to incident with no other issues. (2) He enlisted in RA on 6 March 2001. He served in Germany from o/a 8 August 2001 to 28 November 2001 and in Iraq from o/a 5 April 2002 to 24 October 2002. (3) The record is void of a separation packet containing the specific facts and circumstances surrounding discharge processing. (4) He was discharged 24 June 2005 under AR 635-200 Chapter 10, in lieu of trial by court martial, UOTHC. (5) He provides a personal statement asserting psychological struggles while in Iraq due to home-front stressors. He took a medication from a colleague for insomnia, which he claims was a controlled substance (unbeknownst to him at the time). On that same day, while under the influence of this medication he was pressured by other soldiers to take something from the PX. (6) Letter from a dated 2 January 2022 addresses perception of the applicant’s history, being unaware the medication was a benzodiazepine, and being peer pressured to shoplift; the opines a nexus between possible adjustment disorder and/or combat-related stress. c. Supporting Documents All supporting documents reviewed. Lack of citation or discussion in this section should not be interpreted as lack of consideration. He, in essence, is asserting other mental health conditions associated with circumstances leading to discharge. In his statement, he references psychological struggles associated with his deployment to Iraq in 2004 (note, the ROP references dates in Iraq were in 2002). Memorandum from MAJ ,(a physician’s assistant) at Aberdeen Proving Ground, Maryland, dated 2 January 2022 references that applicant was in Kosovo in 2002 and in Iraq in 2004. As described in the ROP, she opined an underlying “acute behavioral health condition caused by combat related stress and the stress of going through a divorce.” She noted the substance he took was in the benzodiazepine class of medications. Applicant has provided no additional psychiatric records in his application. His DD214 shows he was awarded the GWOT Expeditionary Medal and the GWOT Service Medal. There are no references to specific dates with service in Iraq. However, the GWOT Expeditionary Medal was previously awarded to those who served in Iraq between a designated time and 30 April 2005, prior to the approval of the Iraqi Campaign Medal. d. AHLTA The Army electronic medical record, AHLTA, was reviewed but was void of clinical data. e. JLV Available VA records were reviewed via JLV. No service-connected conditions were listed and the record was void of clinical data. f. Other Query of HAIMS did not return any documents for this applicant. 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 mental health conditions associated with the circumstances of his discharge. 2. Did the condition exist or experience occur during military service? Yes, per applicant’s assertion and medical documentation from 2022 relying on retrospective reports. 3. Does the condition or experience actually excuse or mitigate the discharge? Unable to fully opine. The official circumstances and facts of his discharge are not in the record. Should the Board acknowledge service in Iraq in 2004 (when he states events occurred) and accept his assertion that discharge was based on a shoplifting offense and his claims associated with use of a benzodiazepine medication prior to the event, the advisor opines mitigation is warranted. Under liberal consideration guidelines, he has provided compelling evidence of significant psychiatric distress at the time of service to include insomnia and depression. The advisor recognizes it is poor judgment to take a medication without a prescription or clear indication of what the medication is, but it is reasonable to presume the level of his distress at the time impeded his judgment. Benzodiazepine medications, while generally used to create calming and sedating effects, have been known to result in paradoxical responses to include disinhibition which may include hyperactivity and increased impulsivity. Even under normal sedating effects, benzodiazepines at times may impair judgment and cognition and contribute to behaviors out of character compared to baseline functioning. 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 medical review, the Board concurred with the advising official findings they are unable to opinion if the applicant’s medical issues mitigated his conduct that led to his discharge. The Board considered the medical opinion that the applicant provided compelling evidence of significant psychiatric distress at the time of service to include insomnia and depression. The advisor recognizes it is poor judgment to take a medication without a prescription or clear indication of what the medication is, but it is reasonable to presume the level of his distress at the time impeded his judgment. However, evidence show the applicant admitted to the misconduct, the Board determined there was insufficient evidence to of in-service mitigating factors to overcome the misconduct. Based on the preponderance of evidence and the absent of medical documentation to support the applicant’s contentions, the Board denied relief. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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: Except for the correction addressed in Administrative Note(s) below, the Board found 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214, for the period ending 24 June 2005, is missing an important entry that may affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entry in item 18 (Remarks) CONTINUOUS HONORABLE ACTIVE SERVICE FROM 010306 UNTIL 040820. 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. Title 10, USC, Section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and BCM/NRs, on 3 September 2014, 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. 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 sexual assault or sexual harassment was unreported, or 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. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007320 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1