IN THE CASE OF: BOARD DATE: 14 March 2023 DOCKET NUMBER: AR20220007922 APPLICANT REQUESTS: upgrade of his under honorable conditions (general) discharge to honorable. Additionally, he requests an appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) 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 he is seeking an upgrade due to his first honorable initial enlistment of 5 years. He has proven this by his award of the Good Conduct Medal (5 years with no disciplinary action). He was on an extension during his discharge from a school that he was going to attend. He never got to attend the school and the Army discharged him during the extension. He had had no adverse legal issues and only the one infraction during service. The issue/condition related to his request is post-traumatic stress disorder (PTSD). The correction should be made as his service was in fact honorable. He had no other adverse behavior during or after service. 3. The applicant enlisted in the Regular Army on 20 July 1996, for 5 years. His military occupational specialty was 11B (Infantryman). 4. DA Form 2173 (Statement of Medical Examination and Duty Status), dated 9 August 2000 shows the applicant was an outpatient at Womack Army Medical Center, NC, with a left leg injury. The applicant injured his left leg on a parachute landing fall on or about 9 August 2000 at Fort Bragg, NC. 5. The applicant's Line of Duty investigation, dated 14 September 2000, was determined to be in the Line of Duty. 6. The applicant was absent without leave (AWOL) on 23 March 2001 and dropped from the unit rolls as a deserter on 22 April 2001. The applicant was apprehended by civil authorities on 30 March 2002 in. He was transferred to Fort Campbell, KY. 7. DA Form 458 (Charge Sheet) shows court-martial charges were preferred against the applicant on 22 April 2001 for violations of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 23 March 2001 and remaining so absent. 8. Before a summary court-martial on 21 May 2002, the applicant was found guilty of AWOL from on or about 23 March 2001 through on or about 11 April 2002. He was sentenced to reduction to E-1, forfeiture of pay, and restriction for 60 days. 9. A Report of Mental Status Evaluation, dated 22 May 2022, shows the applicant had the mental capacity to understand and participate in the proceedings and was psychiatrically cleared for any administrative action deemed appropriate by command. 10. The applicant's immediate commander notified the applicant on 31 May 2002, of his intent to initiate separation actions against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), paragraph 14-12c, for commission of a serious offense. The reasons for the proposed action are that a Summary Court Martial found him guilty on 21 May 2002, for being AWOL from 23 March 2001 until 11 April 2002. The immediate commander recommended the applicant receive a general, under honorable conditions discharge. The applicant acknowledged receipt of the proposed separation notification on the same date. 11. The applicant consulted with legal counsel on 31 May 2002 and was advised of the basis for his separation; the possible effects of a general, under honorable conditions discharge; and the procedures and rights that were available to him. The applicant acknowledged he understood that if his discharge request was approved, he could expect to encounter substantial prejudice in civilian life. He elected to submit a statement in his own behalf, however, the statement was not available for review. 12. The applicant's commander formally recommended the applicant's separation from service under the provisions of AR 635-200, Chapter 14-12c. The commander recommended he be issued an under honorable conditions discharge. His chain of command concurred. 13. The separation authority approved the recommended discharge on 10 June 2002, and directed the applicant receive a General Discharge Certificate. 14. The applicant was discharged on 17 June 2002. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, paragraph 14-12c, for misconduct. His characterization of service was under honorable conditions (general). He completed 4 years, 10 months, and 3 days of net active service. He lost time from 23 March 2001 to 1 April 2002. He was awarded or authorized the: Army Good Conduct Medal, National Defense Service Medal, Army Service Ribbon, and Parachutist Badge. 15. On 30 October 2022, a staff member at the Army Review Boards Agency (ARBA) requested medical documents that support the applicant's issue of PTSD. He did not respond. 16. By regulation, Soldiers are subject to separation under the provisions Army Regulation 635-200, Chapter 14, for commission of a serious offense. A discharge under other than honorable conditions (UOTHC) is normally considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 17. 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. 18. Published guidance to the BCM/NRs 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. 19. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under honorable conditions (general) discharge to honorable. He contends he had mental health condition 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 1996; 2) The applicant went AWOL from 23 March 2001-11 April 2002; 3) The applicant was discharged on 17 June 2002, Chapter 14-12c, for misconduct. His service was under honorable conditions (general). 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 on his application that PTSD is related to his request as a contributing and mitigating factor in the circumstances that resulted in his separation. There was no indication the applicant reported mental health symptoms while on active service. A Report of Mental Status Evaluation, dated 22 May 2022, shows the applicant had the mental capacity to understand and participate in the proceedings and was psychiatrically cleared for any administrative action deemed appropriate by command. A review of JLV provided evidence the applicant was diagnosed with an anxiety disorder by the VA on 31 May 2022. He reported witnessing injuries during training exercises. He is not actively engaged in treatment at this time. The applicant receives no service- connected disability for a behavioral health condition. He does receive 90% service- connected disability for physical disabilities since 2 March 2022. 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 (1) 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. (2) Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing PTSD while on active service. (3) However, the applicant contends he was experiencing PTSD that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. 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 misconduct, commission of a serious offense. His characterization of service was under honorable conditions (general). He completed 4 years, 10 months, and 3 days of net active service with lost time from 23 March 2001 to 1 April 2002. The Board reviewed and concurred with the medical advisor’s finding that there was insufficient evidence beyond self-report and one encounter that the applicant was experiencing a mental health condition while on active service. The applicant did go AWOL, which can be a sequalae to PTSD, but this is not sufficient to establish a history of a condition during active service. The applicant provided insufficient 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, 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, U.S. Code, Section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the 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 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 begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. 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. Chapter 14 of this regulation established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A under other than honorable conditions discharge was normally considered appropriate. However, the separation authority could direct a general discharge if merited by the Soldier's overall record. 5. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and 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. 6. 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. 7. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service DRBs and Service BCM/NRs 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) AR20220007922 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1