IN THE CASE OF BOARD DATE: 14 April 2023 DOCKET NUMBER: AR20220009126 APPLICANT REQUESTS: * His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge * In effect, to add his award of the Army Achievement Medal and his military training to his DD Form 214(Certificate of Release or Discharge from Active Duty) APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal statement * Advanced Individual Training (AIT) completion certificate * AIT Honor Graduate Certificate * Defensive Driving Certificate * Army Achievement Medal Certificate * Caterpillar Training Certificates (two) * Employer Certificate FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), 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 mental and physical abuse while on active duty. He had a torn anterior cruciate ligament (ACL) but was forced to run with this condition, being verbally abused for the problems arising from the torn ACL. Soldiers with treated unfairly for injuries. He graduated as an honor student and received a medal for his actions during a bomb threat and is requesting an upgrade to get assistance in getting house. 3. On his DD Form 149, the applicant indicates post-traumatic stress disorder (PTSD) and mental health issues as contributing and mitigating factors in the circumstances that resulted in his separation. However, he did not provide a mental health diagnosis. 4. The applicant enlisted in the Regular Army on 31 October 1996, for 3 years. He completed training as an Honor Graduate with award of military occupational specialty 11M (Mechanized Infantryman). 5. The applicant was awarded the Army Achievement Medal on 15 May 1997 for his actions during a real world mass casualty exercise, by Permanent Orders 135-03, issued by Headquarters, 1st Battalion, 9th Cavalry Regiment, 1st Cavalry Division. 6. Court-martial charges were preferred against the applicant on 24 February 1999 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with being absent without leave (AWOL) from on or about 7 May 1998 until on or about 22 February 1999. 7. The applicant consulted with legal counsel on 25 February 1999 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 an under other than honorable conditions discharge; and the procedures and rights that were available to him. a. After receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, 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 Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He was advised he could receive a separation medical examination and to submit any statements he desired in his own behalf; however, the applicant waived these rights. 8. On 30 June 1999, the applicant's immediate commander recommended approval of the applicant's request for discharge in lieu of trial by court-martial, with his service characterized as UOTHC. 9. The separation authority approved the applicant's request for discharge on 14 July 1999, in lieu of trial by court-martial and directed the applicant be reduced to the lowest enlisted grade, and the issuance of an UOTHC Discharge Certificate. 10. The applicant was discharged on 30 July 1999. His DD Form 214 shows he was discharged under the provisions of AR 635-200, Chapter 10, in lieu of trial by court martial and his service was characterized as UOTHC (Separation Code KFS and Reentry Code 3). He was credited with 1 year, 11 months, and 9 days of net active service with 291 days of lost time and 156 days in excess leave. His DD Form 214 shows in: * Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) National Defense Service Medal and the Army Service Ribbon * Block 14 (Military Education) None 11. The applicant provides in-service certificates of training, graduation, and achievement. Additionally, he provides post-service certificates for performance and training as follows: * Diploma, Individual Infantry Training, 20 February 1997 * National Safety Counsel’s Defensive Driving Course, 7 March 1997 (duration is not listed) * Certificate of Completion, Operator’s Safety Training Course, 15 June 1999, duration is not listed * Training Certificate, Forklift/Powered Industrial Truck Safety, 10 June 2004 (after discharge) 12. 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. 13. 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. 14. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) discharge. He contends he had PTSD and other mental health condition that mitigated his misconduct. 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 31 October 1996; 2) The applicant went AWOL from 7 May 1998 -22 February 1999; 3) The applicant was discharged on 30 July 1999, Chapter 10, in lieu of trial by court-martial. His service was characterized as UOTHC. b. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) and civilian medical records were also examined. c. On his application, the applicant noted PTSD and other mental health conditions were related to his request, as a contributing and mitigating factors in the circumstances that resulted in his separation. He reported injuring his ACL while in training and felt he was exposed “to abuse both mental and physical.” 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 not provide any civilian medical documentation indicating he has been diagnosed with a mental health condition. d. 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. e. 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 a mental health condition that contributed to his misconduct. (2) Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing a mental health condition while on active service. (3) Does the condition experience actually excuse or mitigate the discharge? Partially, there is insufficient evidence beyond self-report the applicant was experiencing a mental health condition while on active service. The applicant did go AWOL, which can be a sequalae to some mental health conditions, 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: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was partially warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. a. The evidence of record shows the applicant was awarded the Army Achievement Medal on 15 May 1997 for his actions during a real-world mass casualty exercise, by Permanent Orders 135-03, issued by Headquarters, 1st Battalion, 9th Cavalry Regiment, 1st Cavalry Division. This award is not listed on his DD Form 214. b. By regulation, item 14 of the DD Form 214 lists formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214. This information is to assist the Soldier in job placement and counseling; therefore, do not list training courses for combat skills. The applicant’s training certificate are either lacking in duration, or were combat training, or completed after discharge. The Board determined none of his training qualifies to be entered on the DD Form 214. c. 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 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 and result in an under other than honorable conditions discharge. The Board reviewed and concurred with the medical advisor’s finding insufficient evidence beyond self-report the applicant was experiencing a mental health condition while on active service. There is also no nexus between his reported mental health condition and his violent misconduct. 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 :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 Army Achievement Medal to his DD Form 214. 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 his discharge or adding the training to his 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, 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. Title 10, USC, Section 1556, provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (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 that 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 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, an under other than honorable conditions discharge was normally considered appropriate. 4. Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It establishes standardized policy for preparing and distributing the DD Form 214 and states for entries at item 14 (Military Education) to list formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214. This information is to assist the Soldier in job placement and counseling; therefore, do not list training courses for combat skills. 5. 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 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. 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. 6. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018, 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 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.) AR20220009126 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1