IN THE CASE OF: BOARD DATE: 11 April 2023 DOCKET NUMBER: AR20220008885 APPLICANT REQUESTS: a change to the narrative reason for separation, from “In Lieu of Trial by Court-Martial” to something more favorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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, in effect, he would like to correct his records and discharge status. 3. The applicant indicated on his DD Form 293, Section 4 (Evidence and Records), item 23a (In support of this claim, the following documentary evidence is attached (List Documents)), “medical documents.” However, his application was void of the medical documents. A letter from Case Management Division, dated 15 November 2022, was sent to the applicant requesting him to provide a copy of the medical documents that support his “other mental health issues” as indicated in item 21 of his DD Form 293. As of the date of this writing, medical documents were not submitted. 4. Review of the applicant's service record shows: a. He enlisted in the Regular Army on 19 May 2004. b. Three (3) DA Forms 4187 (Personnel Action) reflect his duty status changed as follows: * from leave (OLV) to Absent Without Leave (AWOL), effective 9 July 2006 * from AWOL to Dropped From the Rolls (DFR), effective 9 August 2006 * from DFR to Present for Duty (PDY), effective 5 March 2007 c. DA Form 458 (Charge Sheet), dated 8 March 2007, reflects the applicant was being charged for violating the Uniform Code of Military Justice, Article 86, for absenting himself from his organization, without authority, from 9 July 2006 to 5 March 2007. d. On 8 March 2007, the applicant consulted with legal counsel. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. Subsequent to receiving legal counsel, he voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), 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 an undesirable discharge * he 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 was advised he could submit any statements he desired in his own behalf; he did not submit any statements e. On 28 March 2007, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, chapter 10, in lieu of trial by court- martial, and directed that he be reduced to the lowest enlisted grade and discharged under other than honorable conditions. f. His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects he was discharged on 13 April 2007, under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial, with a character of service of under other than honorable conditions. He completed 2 years, 2 months, and 29 days of active service and he had lost time from 9 July 2006 to 4 March 2007. 4. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade and/or reason for his discharge on 19 May 2008. The ADRB determined the discharge was both proper and equitable and voted to deny relief. 5. AR 635-200 states, a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. Soldiers separated under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial are assigned the Narrative Reason for Separation as "In Lieu of Trial by Court-Martial." 6. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 8. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting correction of his DD Form 214 to show a change of narrative reason for separation. He selected on his DD Form 293 that his misconduct was associated with Other Mental Health Issues. 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 19 May 2004; 2) Court-martial charges were preferred against him on 8 March 2007 for being AWOL from 9 July 2006 to 5 March 2007; 3) On 8 March 2007, the applicant consulted with legal counsel and subsequent to receiving legal counsel, he voluntarily requested discharge under the provision of Army Regulation (AR) 635-200, Chapter 10, in lieu of trial by court-martial; 4) He was discharged on 13 April 2007, under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial. c. The military electronic medical record, AHLTA, VA electronic medical record, JLV, and ROP were reviewed. A review of AHLTA was void of any BH-related treatment history for the applicant. A review of JLV showed the applicant does not have a service- connected disability but does have a BH-related treatment history at the VA. Records suggest his first BH related engagement with the VA occurred at the Durham NC VA on 28 September 2020, whereby the applicant presented to the same day clinic with concerns of depression, anxiety, and PTSD symptoms. The provider noted the applicant with sever situational depression with a history of MVA impairing his ability to work. No diagnosis was rendered during the encounter. On the same day the applicant also sought assistance through the homeless veteran’s program, reporting that he and family were currently displaced due to “thugs shooting” in the neighborhood. The family had reportedly been residing in the applicant’s truck. d. The applicant was seen in the VA’s ER on 29 December 2020 with complaints of depression and anxiety, and stated he was seeking to establish care for depression, anxiety, and PTSD-like symptoms. He reported combat exposure in Iraq and a history of symptoms subsequent deployment. The applicant was diagnosed with Depression Unspecified, Anxiety Unspecified, and Rule-out of PTSD. The provider noted her intent to submit a consult for continued outpatient care. Encounter note dated 19 January 2021 showed the applicant presented for a psychiatric intake and reported efforts to get treatment for PTSD since a few years prior. He reported symptoms of irritability, agitation, isolation, hostility toward other, flashbacks, and trust issues. He reported having gone AWOL because he had a bad surgery and because someone in his unit tried to kill him. He additionally reported exposure to roadside bombs during deployment and the loss of several friends, resulting in survivors’ guilt. He was diagnosed with PTSD Chronic, and MDD, started on psychotropic medication and scheduled for follow-up. Records show the applicant remained in outpatient treatment, on an inconsistent basis, until 3 August 2021. Subsequent attempts to contact the applicant were unsuccessful. The final attempt to contact the applicant was 14 December 2021. e. The applicant is requesting a change in his narrative summary and selected on his DD293 that his misconduct was related to Other Mental Health Issues. A review of the record showed the applicant was not diagnosed or treated for a BH condition during his time in service, however, was treated post-service. Post service records showed the applicant diagnosed with PTSD chronic, by a VA provider, associated with his deployment to Iraq, and a reported attempt by someone in his unit trying to kill him. As there is a clear nexus between PTSD and avoidance of trauma reminders and/or potential re-exposures to trauma, the applicant’s misconduct characterized by AWOL would be mitigated by the applicant’s diagnosis of PTSD. f. 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 contends his misconduct was related to Other Mental Health Issues, and he was diagnosed by a VA provider with PTSD chronic, related to combat exposure in Iraq. (2) Did the condition exist or experience occur during military service? Yes. The condition is reportedly related to combat exposure in Iraq. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant is requesting a change in his narrative summary and selected on his DD293 that his misconduct was related to Other Mental Health Issues. A review of the record showed the applicant was not diagnosed or treated for a BH condition during his time in service, however, was treated post-service. Post service records showed the applicant diagnosed with PTSD chronic, by a VA provider, associated with his deployment to Iraq, and a reported attempt on his life, by someone in his unit. As there is a clear nexus between PTSD and avoidance of trauma reminders and/or potential re- exposures to trauma, the applicant’s misconduct characterized by AWOL would be mitigated by the applicant’s diagnosis of PTSD. 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. a. The applicant was charged with commission of an offense (AWOL) 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 sufficient evidence of in-service mitigating factors to overcome the misconduct. Based on a preponderance of evidence, the Board determined that the applicant’s service did not rise to the level required for an honorable characterization of service; however, a general discharge is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests. b. As for the narrative reason for separation, the applicant did go AWOL from 9 July 2006 to 4 March 2007. This resulted in court-martial charges against him. Absent his AWOL, there would not have been a reason to prefer court-martial charges against him, and absent these court-martial charges, there would have been no reason for him to request discharge in lieu of trial by court-martial. Based on a preponderance of evidence, the Board determined that the narrative reason for separation the applicant received upon separation was not in error or unjust. ? 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 reissuing him a DD Form 214 for the period ending 13 April 2007 showing his character of service as Under Honorable Conditions, General. * Separation Authority: No Change * Separation Code: No Change * Reentry Code: No Change 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 changing the narrative reason for separation. 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. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 3. Hagel Memorandum, dated 3 September 2014, states liberal consideration will be given in petitions for changes in characterization of service to service treatment records entries which document one or more symptoms which meet the diagnostic criteria of PTSD or related conditions. Special consideration will be given to VA determinations which documents PTSD or PTSD related conditions connected to military service. In cases in which PTSD or PTSD related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220008885 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1