IN THE CASE OF: BOARD DATE: 17 February 2023 DOCKET NUMBER: AR20220007423 APPLICANT REQUESTS: Reconsideration of his request for upgrade of his previously upgraded under honorable conditions (general) discharge. Additionally, a personal appearance before the Board and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 2 July 1986, as follows: * changing his narrative reason for separation from "In Lieu of Court-Martial" to "Secretarial Authority" or "Commander's Discretion" * changing his reentry (RE) code from "RE-3" to "RE-1" * adding his Jungle Expert Badge (JEB) and 82nd Airborne Certificate of Achievement (COA) APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel's petition, dated 14 April 2022, with the applicant's Power of Attorney * DD Form 149, dated 1 April 2019 for ABCMR Docket Number AR20190005977, with Case Management Division (CMD), letter informing the applicant of his discharge upgrade, dated 4 May 2020 * DD Form 214, for the period ending 2 July 1986 * Enclosures 5-12 are 38 pages of documents previously considered including: Affidavit in support of previous petition, 82nd Airborne COA, Charge Sheet, Request for Discharge, Separation Memoranda, Certificates and Degrees, and Character References * Clarifying Guidance to Military Discharge Review Boards and Boards, also known as the Kurta Memorandum, dated 25 August 2017 * CMD's request for supporting medical documentation, dated 11 October 2022 * Counsel's Response to request for supporting documents, dated 28 October 22 * Physician's letter, dated 26 October 2022 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 AR20190005977 on 27 January 2020. 2. Counsel states as a new contention, he does not believe the Board considered new polices and guidance such as the Kurta and Hagel memoranda in their previous decision. These memoranda require the Board to consider underlying mental health conditions as mitigating factors in misconduct. The applicant was suffering from a temporary underlying health condition, including anxiety and depression, due to a younger sibling attempting suicide. This is what caused him to engage in conduct he would not otherwise have engaged in [Not returning from leave to care for his sibling]. The decision to deny him a request to extend leave was an arbitrary and capricious abuse of discretion and authority that failed to consider the gravity of the circumstances surrounding his request. If his request were not denied, he would not have been declared absent without leave (AWOL) and subsequently separated from service. Had these issues presented themselves today, he would have probably been granted a compassionate reassignment or a hardship discharge, to allow him to care for his sibling. 3. The applicant's service records show: a. On 8 January 1985, the applicant enlisted in the Regular Army, for 3-years and 17 weeks. Upon completion of training, award of the military occupational specialty 11B (Infantryman), and the basic airborne course at Fort Benning, GA, he was assigned to Fort Bragg, NC, and arrived on or about 3 May 1985. b. On 2 June 1986, court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 4 March 1986 through on or about 23 May 1986. c. On 3 June 1986, after consulting with counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He elected not to submit a statement in his own behalf. d. On 5 June 1986, the applicant's commander recommended approval of his request for discharge. The commander noted the applicant did not appear to be mentally defective, deranged, or abnormal. His intermediate commander recommended approval on the same day. They recommended he receive an UOTHC discharge. e. On 11 June 1986, the separation authority approved the applicant's request for discharge in lieu of court-martial. He directed the applicant be reduced to the lowest enlisted grade and issued an UOTHC service characterization. f. On 2 July 1986, the applicant was discharged. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of court-martial. He was reduced to the lowest enlisted grade, Item 27 (RE Code) shows "RE 3B, 3," Item 28 (Narrative Reason for Separation) shows "For the Good of the Service - In Lieu of Court-Martial." His service was characterized as UOTHC, and he was credited with completing 1 year, 3 months, and 6 days of net active service this period, with one period of lost time. 4. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 5. On 27 January 2020, the ABCMR considered the applicant's request for an upgrade of his discharge, a change of his narrative reason for separation, change to RE-1 and a corresponding separation code. Additionally, he requested to add his JEB and 82nd Airborne COA, and to correct his name. The Board found the following: a. Sufficient evidence of post-service achievements and letters of reference to support a favorable clemency determination. Based on a preponderance of evidence, the applicant's character was upgraded to under honorable conditions (general) and his rank/grade was changed to private first class/E-3. He was issued a new DD Form 214. b. Insufficient evidence of mitigating circumstances that would support a recommendation to change the reason for separation, separation code, or RE code in this case. By a preponderance of the evidence, the Board determined there was no error or injustice to support further correction of the record. c. The Board agreed that neither his JEB nor his COA were authorized to be recorded on his DD Form 214. d. The Board reviewed the applicant's records and noted he consistently used the name recorded on his DD Form 214 throughout his service. The mitigating circumstances were determined to be insufficient for correction of his DD Form 214 to reflect his post-service name. 6. Counsel provides (provided in entirety to the Board): * A nine-page petition as outlined above, with the applicant's POA * DD Form 149 from ABCMR Docket Number AR20190005977, with Case Management Division (CMD), letter informing the applicant of his upgrade * DD Form 214, for the period ending 2 July 1986 * 38 pages of previously considered documents * Kurta Memorandum * Counsel's Response to request for supporting medical documents * Physician's letter, showing he evaluated the applicant on 25 October 2022 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 ABCMR requesting reconsideration of his request for an upgrade of his previously upgraded under honorable conditions (general) discharge. He contends he had mental health conditions 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 08 January 1985; 2) The applicant went AWOL from 04 March 1986 -23 May 1986; 3) On 2 July 1986, the applicant was discharged, Chapter 10, for the good of the service - in lieu of court-martial. His service was characterized as UOTHC; 4) On 27 January 2020, the ABCMR considered the applicant's request for an upgrade of his discharge. Based on a preponderance of evidence, the applicant's character was upgraded to under honorable conditions (general), and his grade was changed to E-3. He was issued a new DD Form 214. 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) and hardcopy civilian medical records were also examined. d. The applicant asserts he was experiencing temporary anxiety and depression related to family stressors. The applicant went on leave to address his family’s needs, and his request to extend his leave was not supported by command. The applicant decided to go AWOL to continue to attend to his family. There was no indication the applicant reported mental health symptoms while on active service. A review of JLV was void of any medical documentation. The applicant receives no service-connected disability. The applicant did provide a letter dated 26 October 2022 from a physician from San Diego. The letter stated the applicant met criteria for an adjustment disorder in March of 1986. e. Based on the available information, it is the opinion of the Agency BH Advisor that 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 mental health conditions that contributed to his misconduct. B. Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing mental health conditions while on active service. C. Does the condition experience actually excuse or mitigate the discharge? Partially, there is insufficient evidence beyond self-report the applicant was experiencing temporary anxiety and depression while on active service. The applicant did go AWOL, which can be a sequalae to anxiety and depression, but this is not sufficient to establish a history of a condition during active service. 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 partial relief was 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, 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 the medical review the Board concurred with the advising official finding insufficient evidence beyond self- report the applicant was experiencing temporary anxiety and depression while on active service. The Board agreed there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. The Board noted the applicant did go AWOL, which can be a sequalae to anxiety and depression, but this is not sufficient to establish a history of a condition during active service. 2. The applicant was discharged for misconduct and was previously upgraded to an under honorable conditions (General) characterization of service. The Board found the evidence in mitigation does not outweigh the severity of the misconduct and a full upgrade to honorable is not warranted. The applicant’s service does not meet the criteria for an honorable discharge characterization and is not otherwise so meritorious that any other characterization would be inappropriate. Based on regulatory guidance certificate of achievements are not annotated on the DD Form 214. The Board found the applicant has not demonstrated by a preponderance of the evidence that any further discharge upgrade is warranted or change in the applicant’s narrative reason or entry code is needed. Based on this, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the Jungle Expert Badge (JEB) to his DD Form 214 for the period ending 2 July 1986. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade of his previously upgraded under honorable conditions (general) discharge, change to the applicant’s narrative reason, reentry code. and adding his 82nd Airborne Certificate of Achievement (COA) to the DD Form 214. 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 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. 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 (Active Duty Enlisted Administrative Separations), 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. Army Regulation 635-5-1 (Separation Program Designators), as then in effect, prescribed the specific authorities, reasons for separation, and the separation program designator codes to be used for each reason for separation. The regulation stated "KFS" was the code applicable to discharges for the good of the service in lieu of trial by court-martial. The Separation Program Designator/Reenlistment Code Cross Reference Table in effect at the time provided that reenlistment codes 3B and 3 were to be used with separation program designator "KFS." 5. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time, prescribed eligibility criteria governing the enlistment of persons, with or without prior service, into the Regular Army and the U.S. Army Reserve. Chapter 3 prescribed basic eligibility for prior service applicants for enlistment, which included a list of Armed Forces RE codes. * RE-4 applies to persons separated from their last period of service with a nonwaivable disqualification * RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable * RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated 6. Army Regulation 672-5-1 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. 7. Army Regulation 635-5 (Separation Documents), then in effect, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for preparation of the DD Form 214. The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. It stated that all decorations, service medals, campaign credits, and badges awarded or authorized will be entered on the DD Form 214. 8. 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. 9. 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. 10. 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) AR20220007423 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1