IN THE CASE OF: BOARD DATE: 11 April 2023 DOCKET NUMBER: AR20220009196 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded and to be afforded a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Enlistment documents (26 pages) * Preseparation Counseling Checklist * Discharge Orders * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DA Form 2-1 (Personnel Qualification Record – Part ll) * Mental Health records (31 pages) 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 a recent evaluation from his private practice doctor diagnosed him as suffering from post-traumatic stress disorder (PTSD). This condition was the reason for the events that led up to his disciplinary action and ultimate discharge. On the applicant's application, he indicates PTSD as a contributing and mitigating factor in the circumstances that resulted in his separation. Additionally, the applicant's official military personnel file is sparse. This case is being considered using the documents he provided. 3. The applicant enlisted in the Regular Army on 28 September 1999 for 4 years. He completed training and was awarded military occupational specialty 91E (Dental Specialist). 4. The applicant’s available record is void of his separation processing documents. However, his record contains a DD Form 214 that shows he was discharged on 13 July 2001, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, in lieu of trial by court-martial. He was discharged in the grade of E-1 and his service was characterized as UOTHC. He had 1 year, 9 months, and 16 days of net active service. He was awarded the Army Service Ribbon. 5. The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no information that would indicate the contrary. 6. The applicant provides a copy of a private medical/psychiatric evaluation, dated 21 January 2022, which shows he was diagnosed with PTSD. It further details: a. He experienced PTSD symptoms since approximately 2001, after being given a UOTHC discharge. He has experienced nightmares and depression about events that occurred during his term in the military, particularly surrounding issues of racism directed towards him by a superior (e.g. hazing, punishments, and other unjust treatment), imprisonment, and solitary confinement/isolation in the prison system. b. He reported that he had ceased attending to his responsibilities, resulting in his being considered absent without leave. He understood that he would be punished for ceasing to attend to his work, but was surprised when he was detained in a military prison in Germany for six to eight months. He was upset that those who arrested him did not ask for his side of the story or his reason for abandoning his duties. c. He indicated that his time in prison "psychologically messed with him." Within the prison system, he was ordered to engage in various responsibilities (e.g. making the bed, doing chores/work, being told to clean the bars, etc.). When he refused these duties, he was thrown into "the hole" (i.e. solitary confinement), where he experienced a lack of control over basic life necessities. He was sent to "the hole" multiple times, spending approximately two weeks in solitary confinement. 7. 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. 10. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting upgrade of his under other than honorable conditions (UOTHC) discharge. He contends he had PTSD which 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 28 September 1999; 2) The applicant’s available record is void of his separation processing documents. However, he was discharged on 13 July 2001, Chapter 10, in lieu of trial by court-martial. He was discharged in the grade of E-1 and his service was characterized as UOTHC. 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 civilian medical records were also examined. d. On the applicant's application, he indicated PTSD as a contributing and mitigating factor in the circumstances that resulted in his separation. There was insufficient information available that the applicant had ever been diagnosed with a mental health disorder while on active service. A review of JLV was void of any medical or mental health documentation for the applicant. The applicant receives no service-connected disability. The applicant did provide a full psychological evaluation completed by a licensed civilian psychologist dated 21 January 2022. The results of the evaluated concluded that the applicant met criteria for PTSD. While there is no confirming military record, the applicant stated he was imprisoned in a military prison. He felt that racism was a contributing factor to his misconduct, which he reported was not “attending to his responsibilities”, and he was imprisoned for the behavior. Per the applicant’s report during the evaluation, he was traumatized by his experiences in prison. There was clear report that the applicant stated his behavioral health symptoms started “after being given an Other Than Honorable (OTH) discharge from his military position.” The applicant has no history of any exposure to a combat environment. 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 due to the lack of information available on the specific nature of the events which resulted in the applicant’s discharge for active service. In addition, the medical evidence provided by the applicant stated clearly that his symptoms of PTSD began after his discharge. f. 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 which 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) Does the condition experience actually excuse or mitigate the discharge? N/A, there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct due to the lack of information available on the specific nature of the events which resulted in the applicant’s discharge for active service. The applicant does provide a psychological evaluation, which did diagnose him with PTSD. However, the applicant’s reported symptoms initially started in 2001 after being discharged from 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: 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’s separation packet is not available for review. However, his DD Form 214 shows he was discharged in the grade of E-1 on 13 July 2001, under the provisions of AR 635-200, Chapter 10, in lieu of trial by court- martial. His service was characterized as UOTHC. He completed 1 year, 9 months, and 16 days of net active service. a. The issuance of a discharge under the provisions of AR 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no information that would indicate the contrary. b. 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 insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no 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: 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. 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 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, U.S. Code, 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. 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 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. 5. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (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 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 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.) AR20220009196 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1