IN THE CASE OF: BOARD DATE: 7 February 2023 DOCKET NUMBER: AR20220007611 APPLICANT REQUESTS: reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge and his narrative reason for separation be changed to reflect "Secretarial Authority." APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from Counsel and Legal Brief, dated 30 March 2022 (26 pages) * Exhibit 1 – Army Discharge Review Board (ADRB) Decision Memorandum, dated 29 November 1995 * Exhibit 2 – Applicant’s Statement, dated 24 March 2022 (3 pages) * Exhibit 3 – National Veterans Legal Service Program (NVLSP) Memorandum, dated 19 May 2021 * Exhibit 4 – DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 23 March 1992 * Exhibit 5 – Memorandum from Special Processing Company, Personnel Control Facility, Fort Knox, Kentucky; subject: Admission of Absence without Leave (AWOL) for Administrative Purposes * Exhibit 6 – Army Board for Correction of Military Records (ABCMR) Decision Memorandum, dated 4 October 2018 * Exhibit 7 – Medical Document – Initial Post-Traumatic Stress Disorder (PTSD) Questionnaire, dated 3 April 2018 * Exhibit 8 – PTSD Medical Notes, dated 1 February 2011 * Exhibit 9 – Veterans Administration (VA) Form 21-4138 (Statement in Support of Claim), dated 5 January 2019 * Exhibit 10 – VA Form 21-0781 (Statement in Support of Claim for Service Connection for PTSD), dated 11 April 2017 * Exhibit 11 – DD Form 149, dated 30 July 2016 * Exhibits 12 – 14 - Various Medical Notes * Exhibit 15 – Military Award, dated 1 May 1990 * Exhibit 16 – VA Decision Memorandum, dated 13 November 2019 * Exhibits 17 – 24 - Character Reference Letters (8) * Exhibit 25 – Separation Packet * Exhibit 26 – DD Form 293 (Application for the Review of Discharge or Dismissal), dated 8 December 1992 * Exhibit 27 – Memorandum from Applicant; subject: Medical Examination for Separation - Statement of Option, dated 19 February 1992 * Exhibit 28 – Various Medical Documents * Exhibit 29 – Medical Appointment Slip (10 February 2022) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20160014339 on 4 October 2018. 2. Counsel states, the ABCMR should upgrade the applicant's discharge status to correct an injustice. A general discharge may be issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The applicant’s application falls squarely within the rationale for the changed approach to considering discharge upgrades set forth in the Hagel Memorandum and the clarifying guidance in both the Kurta and Wilkie Memoranda. Thus, his misconduct has been sufficiently mitigated to warrant changing his discharge to Honorable. The applicant's service was not perfect, but the Board should consider that the significant positive aspects of his service outweigh his misconduct, and recognize that his service warrants a discharge rating of at least general, under honorable conditions. 3. The applicant states: a. He served in the Army from January 1988 to March 1992. He was in the 82nd Airborne at Fort Bragg. During this time, he was deployed twice in support of combat operations. He looked up to his platoon sergeant, and thought of him as a father figure. However, when he returned from Desert Storm, his platoon sergeant became extremely adversarial and even specifically stated that he was "out to get him [applicant] even though he had done nothing wrong. He believed that his request for a Chapter 5 discharge spurred retaliation against him. As soon as he put in his request for a Chapter 5 discharge, he received extra work and had to work on the weekends, which he views as clear retaliation and harassment. b. By the time he returned from Desert Storm, he was exhausted both mentally and physically as he had not been on leave for over two and a half years. Since being discharged he was diagnosed with combat related PTSD in 2017 and it has been confirmed that his experience while deployed had a significant impact on his mental health. Unfortunately, at the time he was deployed, mental health did not receive the attention it deserved. During his deployment he experienced trauma in both Panama and Kuwait, including coming under enemy fire, being shot in the right ankle, and witnessing the destruction of an innocent village. He had to kill a man in Panama and watched a very close friend of his, die during combat. 4. On his DD Form 149, the applicant notes that PTSD is related to his request, as a contributing and mitigating factor in the circumstances that resulted in his separation. 5. He enlisted in the Regular Army on 12 January 1988, for 4 years. Upon completion of training, he was awarded military occupational specialty 11H (Heavy Anti-armor Weapons Infantryman). 6. The applicant was deployed to Panama from on or about 20 December 1989 to on or about 12 January 1990. He served in Southwest Asia from 17 August 1990 to 3 April 1991. 7. The applicant was reported AWOL from his unit at Fort Bragg, North Carolina, on or about 24 August 1991. He was dropped from the unit rolls on 24 September 1991. 8. The applicant was returned to military control at Fort Knox, Kentucky, on or about 18 February 1992. 9. On 19 February 1992, the applicant declined to undergo a medical examination for separation from active duty. 10. Court-martial charges were preferred against the applicant on 25 February 1992 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 24 August 1991 through on or about 18 February 1992. 11. The applicant consulted with legal counsel on or about 25 February 1992 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a bad conduct discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. 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 VA, and he could be deprived of his rights and benefits as a Veteran under both Federal and State laws. b. He elected to submit statements in his own behalf, wherein he detailed events that affected his family and his 44 months while on active duty. He further stated that he felt unbearable pressure and harassment was put on him, making his work environment miserable. That pressure adversely affected his marriage and his business. 12. The applicant's chain of command recommended approval of his request for discharge for the good of the service – in lieu of trial by court-martial. 13. On 2 March 1992, consistent with the chain of command's recommendation the separation authority approved the applicant's request for discharge in lieu of trial by court-martial and directed his reduction to the lowest enlisted grade and the issuance of an UOTHC discharge. 14. The applicant was discharged on 23 March 1992. His DD Form 214 confirms he was discharged under the provisions of AR 635-200, Chapter 10, for the good of the service - in lieu of court-martial. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He completed 3 years, 8 months, and 18 days of net active service this period. He was awarded or authorized the Southwest Asia Service Medal with 2 Bronze Stars, Army Achievement Medal, Good Conduct Medal, National Defense Service Medal, Armed Forces Expeditionary Medal, Army Service Ribbon, Expert Qualification Badge Hand Grenade, Sharpshooter Qualification Badge Dragon Gunner, Marksman Qualification Badge M-16 Rifle, Combat Infantryman Badge, Parachutist Badge with Bronze Star, and the Kuwait Liberation Medal. 15. The applicant petitioned the ADRB for upgrade of his discharge. On or about 29 November 1995, the ADRB determined that his discharge was proper and equitable, and his request for relief was denied. 16. The applicant petitioned the ABCMR on 30 July 2016, for consideration of his request to have his UOTHC discharge upgraded. The Board voted to deny relief and determined the overall merits of the case were insufficient as a basis for correction of the records. 17. Through counsel, the applicant provides: a. Multiple pages of VA forms and correspondence in support of his VA disability compensation application. These documents are provided in their entirety for the Board’s review within the supporting documents. b. Multiple medical documents that show he was diagnosed and treated for PTSD following his separation from the Army. c. Character Reference Letters that collectively attest to the applicant's mental state and how he "changed" following his separation from the Army. Several letters speak to his heart for service, spirituality, and his moral character. 18. 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. 19. Published guidance to the Boards for Correction of Military/Naval 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. 20. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting reconsideration of his previous request for upgrade of UOTHC discharge and narrative reason for separation be changed to Secretarial Authority. 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) Current ROP incorporates prior consideration by the ABCMR Docket Number AR20160014339 on 4 October 2018. (2) Applicant asserts he served in the Army from January 1988 to March 1992 and deployed twice in support of combat operations to include Operation Desert Storm. He was diagnosed with combat-related PTSD in 2017 and experienced trauma in both Panama and Kuwait. On his DD Form 149 he notes PTSD related to his request. (3) He enlisted in the Regular Army on 12 January 1988. He deployed to Panama o/a 20 December 1989 to o/a 12 January 1990. He served in SW Asia 17 August 1990 to 3 April 1991. (4) He was reported AWOL on 24 August 1991 and DFR on 24 September 1991. He was returned to military control on 18 February 1992. He declined a separation medical examination. (5) Court-martial charges were preferred on 25 February 1992; record shows charge of AWOL o/a 24 August 1991 to o/a 18 February 1992. He submitted statements that, in part, suggested pressure and harassment put on him. (6) He was discharged 23 March 1992; DD214 shows discharge via AR 635-200 Chapter 10 (in lieu of court-martial), UOTHC. (7) On or about 29 November 1995 the ADRB denied his request for relief. (8) Prior request for relief was denied by the ABCMR as noted above. (9) Through counsel, applicant provides numerous documents to include VA correspondence and records, medical records showing diagnosis of PTSD, and character reference letters. c. Supporting Documents Supporting documents reviewed and appreciated to include “Brief in Support of Application” by counsel and all other documentation. Among the assertions included in the brief are that applicant was diagnosed by VA with PTSD in 2017 (and has been in treatment since) and that in 2019 he was granted service-connection for treatment purposes only given the nature of his discharge. Compensation and Pension examination dated 30 January 2018 resulted in diagnosis of PTSD, Chronic, and at the time he reported having engaged in 6 prior psychotherapy sessions since 2017. Index (Criterion A) traumas cited in the evaluation included Combat in Panama and Iraq, but specifics were not further elaborated. Evaluation referenced two prior suicide attempts. Statements in Support of Claim for Service Connection for PTSD elaborate in more detail specifics of experiences in both Panama and SW Asia that clearly meet definition of Criterion A trauma. VA Mental Health Consult dated 13 March 2017 indicates MVA 2 years prior and implies exacerbation of military-related post-traumatic stress symptoms since the accident. He lost a leg to infection in 2016. The evaluation indicated no prior psychiatric care and 2 past suicide attempts to include in 2014. He was diagnosed with PTSD. On 9 March 2017 he met with the Health Care for Homeless Vets VA program due to risk of losing housing through another Veteran support agency (Centerstone). The applicant supplied numerous other VA therapy notes with diagnosis of PTSD. He was placed on a “High-Risk for Suicide” flag in April 2019. Numerous other VA treatment records were submitted and reviewed by the advisor. VA Rating Decision Letter of 13 November 2019 confirms service connection for treatment purposes only for PTSD. BH advisor appreciates the reference statements provided by multiple individuals. 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. Records indicate applicant has no service-connected disabilities although documentation described above supports nexus between military service and PTSD diagnosis/eligibility for treatment. He is showing as eligible under COMPACT Act. The diagnosis of PTSD associated with combat experiences has already been established therefore his treatment record will not be re-counted. He has remained in consistent care (both psychiatric med management and psychotherapy) since initiating treatment. Diagnoses have consistently included PTSD as well as other diagnoses to include Depression due to Another Medical Condition (eg, Psychiatry Note 10 May 2022). He has also been engaged over time with the Health Care for Homeless Veterans program (HUD/VASH); note of 27 August 2021 indicates discharge from program after being admitted on 9 March 2017. His master problem list includes PTSD and recurrent depression. 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 PTSD associated with the circumstances of his discharge. Record contains both a VA Compensation and Pension evaluation citing a nexus between this diagnosis and his military service and a rating decision showing service connection of PTSD for treatment purposes only. (2) Did the condition exist or experience occur during military service? Yes. The applicant’s assertion is supported by VA records as above. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant asserts mitigation due to PTSD, a diagnosis which is supported by VA records. Even if PTSD was undiagnosed at the time of service, it is reasonable that psychiatric sequelae of combat impacted the behavior ultimately leading to discharge. Avoidance behaviors such as AWOL are often seen as part of the natural history and sequelae of PTSD, therefore the behavior resulting in discharge is mitigated by his psychiatric condition. BH advisor will defer to the Board to consider appropriateness of applicant’s request to change narrative reason for separation. 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 charged with commission of an offense punishable under the UCMJ with a punitive discharge. After being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding that the applicant asserts mitigation due to PTSD, a diagnosis which is supported by VA records. Even if PTSD was undiagnosed at the time of service, it is reasonable that psychiatric sequelae of combat impacted the behavior ultimately leading to discharge. The Board found sufficient evidence of in-service mitigating factors to overcome the misconduct. While the Board believed his service did not rise to the level required for an honorable discharge, based on published DoD guidance for liberal consideration of discharge upgrade requests, the Board determined an upgrade to his character of service to general, under honorable conditions, is appropriate. However, a change to the reason for separation and associated codes is not appropriate. 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 amendment of the ABCMR's decision in Docket Number AR20160014339 on 4 October 2018. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 for the period ending 23 March 1992 showing his character of service as Under Honorable Conditions, General. 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 upgrading the characterization of his discharge to fully honorable or to change his narrative reason for separation to reflect "Secretarial Authority." 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 (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. 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 provided 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 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) AR20220007611 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1