IN THE CASE OF: BOARD DATE: 31 March 2023 DOCKET NUMBER: AR20220009433 APPLICANT REQUESTS: reconsideration of his previous request to upgrade his under other than honorable conditions characterization of service, and a personal appearance before the Board via telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 23 May 2022 * DD Form 149, 15 September 2022 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 1 July 1993 * Department of Veterans Affairs (VA) Discharge Certification Letter, 18 May 2022 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150003166 on 15 October 2015. 2. The applicant provides a new argument which was not previously considered by the Board. 3. The applicant states, in effect, he was severely affected by his service in the Persian Gulf War. He does not feel his Gulf War service or the effect of this service was considered during the evaluation of his discharge. a. The war caused him to suffer occupational and social impairment; his thought process and ability to communicate effectively with others diminished every day, and he became delusional, disoriented to time and place, and felt he was in constant danger. He could not remember the names of close relatives at one point. He knew something was wrong with him, but he did not want to believe or admit he had a mental illness. He needs to receive medical treatment at one of the VA medical centers for this condition, as well as to receive other healthcare. b. He believes his record is unjust because he does understand the entry in Item 18 (Remarks) of his DD For 214, which reads, "Separated from service on temporary records and soldiers affidavit. A DD Form 215 will be issued to provide missing information or to correct any information, etc." 4. The applicant enlisted in the Regular Army on 19 January 1989. The highest grade he held was specialist (SPC/E-4). 5. His DA Form 2-1 (Personnel Qualification) shows he served in Saudi Arabia from 7 September 1990 to 3 April 1991. 6. The complete facts and circumstances surrounding the applicant's discharge, to include his separation packet, are not available for review with this case. 7. His record does contain his DD Form 214 ,which shows he was discharged on 1 July 1993, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations- Enlisted Personnel), chapter 10, in the rank/grade of PVT/E-1, and his service was characterized as under other than honorable conditions. This form also contains the following entries and information: a. Block 12c (Net Active Service This Period): 3 years, 5 months, 7 days of net active service during the covered period. b. Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized): National Defense Service Medal and Army Service Ribbon. c. Block 18 (Remarks): Separated from service on temporary records and Soldiers affidavit. A DD Form 215 will be issued to provide missing information or to correct any information. d. Block 26 (Separation Code): KFS e. Block 27 (Reentry Code): 3 f. Block 28 (Narrative Reason for Separation): For the Good of the Service, in Lieu of Court-Martial. g. Block 29 (Dates of Time Lost During this Period): 6 April 1992 to 18 January 1993 and from 19 January 1993 to 11 April 1993. 8. On 19 October 2015, the Army Board for Correction of Military Records (ABCMR) reviewed the applicant's discharge and his request for an upgrade of his service characterization. The applicant's application was denied, and the Board concluded the following: a. His record was void of the complete facts and circumstances that led to his discharge. However, his record contained a DD Form 214 that showed he was discharged for the good of the service, under the provisions of AR 635-200, chapter 10, and he received an under other than honorable conditions discharge. b. The issuance of a discharge under the provisions of AR 635-200, chapter 10, required him to have voluntarily, willingly, and in writing, request discharge from the Army for the good of the service. It is presumed that all requirements of law and regulation were met, and his rights were fully protected throughout the separation process. He provided no evidence that would indicate the contrary. Further, it is presumed his discharge accurately reflects his overall record of service during his enlistment. Absent evidence to the contrary, regularity must be presumed in this case. c. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. d. The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of the case were insufficient as a basis for correction of the records of the individual concerned. 9. The applicant provides a letter from VA, dated 18 May 2022, which certifies that he was discharged from the U.S. Armed Forces having served in the Army from 19 January 1989 to 1 July 1993. 10. The pertinent Army regulation in effect at the time provided discharges under the provision of AR 635-200, chapter 10, where voluntary requests from the Soldier to be discharged in lieu of a trial by court-martial. 11. Regulatory guidance states when a Soldier is separated with a temporary record, enter "SEPARATED FROM SERVICE ON TEMPORARY RECORD AND SOLDIER'S AFFIDAVIT. A DD FORM 215 WILL BE ISSUED TO PROVIDE MISSING INFORMATION OR TO CORRECT ANY INFORMATION." 12. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. ? 13. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is again applying to the ABCMR requesting an upgrade of his 1 July 1993 discharge characterized as under other than honorable conditions. He states: “I served in the Persian Gulf War during my military service and was severely impacted as a result of the war. I don't think this was taken into account during the evaluation of my discharge. My occupational and social impairment was greatly impacted as a result of the war. I started to notice my thought process and the way I communicated with others were getting lesser every day. I started getting delusional, disorientated to times and places and feeling if I was in danger constantly. I got to the point that I couldn't even remember close relative's names. I knew something was wrong with me, but I didn't want to come to the realization with this fact I had mental illness. I need to be able to receive medical treatment at one of the VA Medical Center for this condition and other health care.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The DD 214 for the period of service under consideration shows he entered the Regular Army on 19 January 1989 and was discharged under other than honorable conditions on 1 July 1993 under the separation authority provided by chapter 10 of AR 635-200, Personnel Separations – Enlisted Personnel (26 May 1989): Discharge for the Good of the Service. The DD 214 shows 373 days of time lost under 10 USC § 972, from 4 April 1992 thru 18 January 1993, and 19 January 1993 thru 11 April 1993. c. The request for a discharge upgrade was denied by the ABCMR on 15 October 2015 (AR220150003166). Rather than repeat their findings here, the board is referred to the record of proceedings for that case. Because this denial was before the full institution of liberal consideration polices, this review will concentrate on evidence of a potentially mitigating mental health condition as well as new evidence submitted with this application. d. Neither his separation packet nor documentation addressing the circumstances of his administrative separation were submitted with the application or uploaded into iPERMS. e. No medical documentation was submitted with the application and the period of service predates AHLTA. Review of his records in JLV shows no diagnoses or clinical encounters. f. There is no evidence the applicant had a mental health or other medical condition which would have contributed to or would now mitigate the UCMJ violations which resulted in his discharge. Furthermore, there is no evidence the applicant had any medical condition prior to his discharge which would have failed the medical retention standards of chapter 3, AR 40-501, and would therefore have been a cause for referral to the Disability Evaluation System. g. It is the opinion of the Agency medical advisor that an upgrade of his discharge remains unwarranted. Kurta Questions: A. Did the applicant have a condition or experience that may excuse or mitigate the discharge? NO B. Did the condition exist or experience occur during military service? N/A C. Does the condition or experience actually excuse or mitigate the discharge? N/A ? BOARD DISCUSSION: 1. The applicant's request for a personal appearance was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance before the Board is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered applicant’s contentions, military record and regulatory guidance. The Board reviewed the Agency Medical Advisor opinion and concurred with the opinion. Based on a preponderance of evidence available for review, 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 to amend the decision of the ABCMR set forth in Docket Number AR20150003166 on 15 October 2015. 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. Army Regulation (AR) 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provided that a member who committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court-martial convening authority. Commanders will ensure that a member is not coerced into submitting a request for discharge for the good of the service. The member is given reasonable time to consult with a consulting counsel and to consider the wisdom of submitting such a request for discharge. After receiving counseling, the member may elect to submit a request for discharge for the good of the service. The member will sign a written request, certifying that they were counseled, understood their rights, may receive a discharge under other than honorable conditions, and understood the adverse nature of such a discharge and the possible consequences. A discharge under other than honorable conditions was normally appropriate for a member who is discharged for the good of the service. However, the separation authority was authorized to direct a general discharge certificate if such was merited by the member's overall record during their current enlistment. For members who had completed entry level status, characterization of service as honorable was not authorized unless the member's record was otherwise so meritorious that any other characterization clearly would be improper. b. An honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. c. A general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. d. A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct or for the good of the service. 2. AR 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, provided that enlisted Soldiers separated under the provisions of AR 635-200, chapter 10 for the Good of the Service in lieu of court-martial would receive a separation code of "KFS." 3. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 provides a list of RE codes. * RE code "1" applies to Soldiers completing their term of active service, who are considered qualified for enlistment if all other criteria are met * RE code "2" is no longer in use but applied to Soldiers separated for the convenience of the government, when reenlistment is not contemplated, who are fully qualified for enlistment/reenlistment * RE code "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, whose disqualification is waivable; they are ineligible unless a waiver is granted * RE code "4" applies to Soldiers separated from last period of service with a non- waivable disqualification 4. AR 635-5 (Personnel Separations-Separation Documents) prescribes policies and procedures regarding separation documents. Chapter 2-4 (Completing the DD Form 214), states, in block 18 (Remarks), when a soldier is separated with a temporary record, enter “SEPARATED FROM SERVICE ON TEMPORARY RECORD AND SOLDIER’S AFFIDAVIT. A DD FORM 215 WILL BE ISSUED TO PROVIDE MISSING INFORMATION OR TO CORRECT ANY INFORMATION.” 5. 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; TBI; sexual assault; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records 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. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. 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. 7. Section 1556 of Title 10, United States Code, 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. 8. AR 15-185 (ABCMR) states 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220009433 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1