IN THE CASE OF: BOARD DATE: 18 April 2023 DOCKET NUMBER: AR20220010619 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Service Medical Documents (56 pages) * Department of Veterans Affairs (VA) Medical Documents (37 pages) 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 AR2001060323 on 29 January 2002. 2. The applicant states, in effect, he injured his knee while attending Basic Combat Training. He did well in the Army until he started using marijuana to cope with his knee pain while attending Advanced Individual Training and could not stop when he was assigned to a permanent party unit because he became addicted. He experienced emotional and mental issues because he was troubled by life in the military. He told his commander he needed help and requested to participate in drug therapy, but he was separated from the service instead. Now he suffers from depression, anxiety, and panic attacks. He is trying to get medical treatment but cannot because of the character of his discharge. 3. The applicant enlisted in the Regular Army in the rank/grade of private first class/E-3 on 28 January 1998 for a period of 3 years. He reenlisted for a period of 3 years on 1 February 2000. 4. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, his available records contain a DD Form 214 which shows he was discharged on 17 July 2000. Additionally, it shows: * his rank/grade as private/E-1 * he had not completed his first full term of service * his characterization of service was UOTHC * his separation was under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 * his Separation Program Designator (SPD) code was "KFS" * his Reentry Eligibility code was "4" * his narrative reason for separation was "In Lieu of trial by Court Martial" * he had time lost from 13 June 2000 to 19 June 2000 5. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 6 January 2001. On 16 November 2001, the applicant was informed that after careful review the ADRB determined that he was properly and equitably discharged. Accordingly, his request for a change in the character and/or reason of his discharge was denied. 6. The applicant petitioned the ABCMR for an upgrade of his discharge on 18 July 2001. On 31 January 2002, the applicant was informed the ABCMR had considered his petition and denied his request for relief. 7. The applicant provides the following: a. Documents extracted from his service medical record which show he was continually evaluated and treated for a knee injury he sustained while playing basketball on 22 October 1998. Magnetic resonance imaging revealed he had an anterior cruciate ligament (ACL) tear. He reported that he did not have constant pain, but his knee pain was frequent. b. VA documents showing the applicant requested to be evaluated for disability due to gradual onset pain stemming from a right knee ACL tear and lateral meniscus tear and for hearing loss and tinnitus. 8. The applicant's record is void of evidence, and he has not provided evidence showing he was diagnosed with any behavioral health condition during his period of service. 9. The absence of the applicant's separation packet means the Board is unable to determine the specific circumstance(s) surrounding his discharge. However, because the Board has the applicant's separation order, it must presume administrative regularity, meaning, unless there is proof to the contrary, the Board assumes the Army's actions were administratively correct. As stated in ABCMR's governing regulation, the Board is not an investigative body, and the applicant bears the responsibility for submitting evidence validating that an error in his official military personnel file has occurred. 10. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in- lieu of trial by court martial. In doing so, he would have waived his opportunity to appear before a court-martial and risk a felony conviction. A characterization of UOTHC is authorized and normally considered appropriate; however, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service, he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 11. 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. 12. MEDICAL REVIEW: a. 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: b. The applicant is applying to the ABCMR requesting an upgrade of his 17 July 2000 discharge. He states: “I messed up my knee in basic training. I did well until I got to AIT {advanced individual training} and permanent party. I started using marijuana for the pain and could not stop. My discharge was due to addiction. I told my commander I needed help and requested to go to drug therapy, but instead, I was booted out of the Service. When I was in military, I had emotional and mental issues. I was troubled by the military life, how I was depressed a lot. I have anxiety and panic attacks I’m trying to get medical attention …” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 for the period of Service under consideration shows he entered the regular Army on 28 January 1998 and was discharged under other than honorable conditions on 17 July 2000 under provisions provided in chapter 10 of AR 635-200, Active Duty Enlisted Administrative Separations (26 June 1996): Discharge in Lieu of Trial by Court–Martial. The DD 214 does not list a deployment to a hazardous duty pay area. d. The applicant’s Service predates AHLTA and there are no diagnoses or encounters in JLV. e. Military medical documentation shows the applicant was evaluated and treated in late 1999 for right knee pain in late 1999. He reported to have inured the knee in late October 1999 while playing basketball. He had pain, swelling, and instability. An MRI obtained 2 December 1999 revealed a tears of the anterior cruciate ligament (ACL) and lateral meniscus. He was initially treated which treated by physical therapy. His instability persisted and orthopedics recommended reconstruction on 2 May 2000. There are no subsequent contemporaneous medical documents and it is unknown if the applicant underwent surgical reconstruction. f. Neither the applicant’s separation packet or documents addressing the circumstances of his administrative separation were within the supporting documentation or uploaded into iPERMS. g. There is no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his UCMJ violation(s); or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his discharge. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of her office, grade, rank, or rating prior to his discharge. h. It is the opinion of the ARBA medical advisor that neither a discharge upgrade nor a referral of his case to the DES is warranted. 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. Other evidence shows the applicant was charged with commission of an offense punishable under the UCMJ with a punitive discharge. After being charged, he presumably 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 carry an under other than honorable conditions characterization of service. 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: 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 1556, provides the Secretary of the Army shall ensure that an applicant seeking corrective action by 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. 2. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an UOTHC discharge. b. 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. c. 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. d. When a Soldier is to be discharged UOTHC, the separation authority would direct an immediate reduction to the lowest enlisted grade. 3. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) 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. 4. 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; 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. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs 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 type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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, 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. 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) AR20220010619 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1