IN THE CASE OF: BOARD DATE: 9 May 2023 DOCKET NUMBER: AR20220011255 APPLICANT REQUESTS: an update to is DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the following changes: * upgrade his characterization of service from under other than honorable conditions to honorable * upgrade his narrative reason for separation from "In Lieu of Court Martial" to "Secretarial Authority" * upgrade reentry code from "RE-3" to "RE-1" APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 8 August 2022 * Self-authored statement, undated * Brief from Legal Counsel, undated * DD Form 2496 (Disposition Form), 22 March 1990 * DA Form 4187-E (Request for duty status change), 22 March 1990 * DA Form 4187-E (Request for duty status change), 21 April 1990 * DA Form 4967 (Department of the Army Report of Survey), 23 April 1990 * Letter (Subject: Report of Survey # 122-90), 26 April 1990 * Orders 184-32, 3 July 1990 * DD Form 214, 18 July 1990 * 9 supporting statements, from 17 November 2021 to 7 January 2022 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's legal counsel states: a. The applicant joined the Army with ambitions of becoming an "Airborne Paratrooper," but he exceeded his goal and achieved many accomplishments during his single four-year contract. During his service, the applicant was given many awards in conjunction with quickly moving through ranks and educational courses. However, the applicant went AWOL because of the compounding stress of war trauma and his wife's infidelity so the applicant's many achievements were not recorded on his DD Form 214. b. The applicant's military assignments included Georgia, NC, Puerto Rico, and Panama where he consistently sought new responsibilities and participated in incredibly difficult jungle and urban assault operations. On 20 December 1989, he participated in the invasion of Panama under Operation "Just Cause." After landing with a defective reserve chute, the applicant found and coordinated other paratroopers to capture and secure a Panamanian Defense Force Soldier at a rallying point. The applicant went on to assist Rangers for weeks in securing the airport and local food warehouses. After numerous drive-by shootings, the applicant traumatically experienced the shooting of a civilian car that resulted in three deaths, one person being a pregnant woman. In honor of the applicant's service in Panama, the applicant was awarded Combat Jump Wings and the Expeditionary Medal with spearhead in addition to the Combat Infantry Badge. c. The applicant returned to Fort Bragg, NC, and experienced trouble sleeping and nightmares from his service in Panama. On March 22, 1990, the applicant found his first wife in bed with another man and the overall experience of war trauma and a failing marriage drove him to go AWOL to. The applicant's status was changed from "Present for Duty" to "Absent without Leave" the same day. On April 21, 1990, the applicant's status was again changed from AWOL to "Dropped from Rolls". After reaching, the applicant separated from his wife and began employment at Casteel Automatic Fire Protection for one month before Amarillo Police arrested him and turned him over to MP for escort to Fort Sill, OK in June of 1990. However, the guard released the applicant in where he then voluntarily chose to hitchhike to Fort Sill to turn himself in. At Fort Sill, the applicant was not accepted back to 82nd Airborne Division by his chain of command and was thus given the choice of remaining at Fort Sill for the final three (3) months of his service contract as a private first class but the applicant chose to leave. On June 29, 1990, the applicant was discharged under "Other Than Honorable Conditions". The applicant remained on base for separation processing until July 18; 1990, and then returned to. Discouraged by his experience in the Army but with conviction to continue full-heartedly to serve his community, the applicant regained employment at Casteel Automatic Fire Protection, divorced his first wife, and has worked through the ranks in the industry for the past 32 years (26 years within APi Group 3 companies). Since discharge, testimony from friends, co-workers, supervisors, and his church community attests to how the applicant has been of invaluable service to his community and family as a church leader and successful businessman, and family man to his second wife of thirty years. d. It is respectfully submitted that the applicant suffered a material injustice because of his erroneous discharge from the Army. The applicant's chain of command made an error in discretion by failing to consider that his service in the Army and family issues led to the applicant's misconduct. 3. The applicant provides a self-authored statement wherein he states: a. From his earliest memories he always had a desire to become a soldier. After he enlisted in 1986, he was shipped out to Fort Benning, GA for basic training. Having never experienced life outside of or away from family, he felt as though he was in a culture shock. He learned many useful skills such as hand to hand combat, rifle, training, running, and marching. In the Spring 1987 he attended Airborne School and where he learned how to exit an aircraft, handle the parachute, and perform a perfect parachute landing fall. In March of 1987 he was assigned to the 82nd Airborne Division where he tested and earned the Expert Infantry Badge. In the fall of 1987, his unit went to Fort Campbell, KY where he achieved the rank of Specialist 4. In the Summer of 1988, his company deployed to Puerto Rico to conduct training for a threat of war in Central America. b. In 1989 he met his first wife. He states, "the relationship was based on looks, sex, and necessity". His wife, who was 18 at the time, was living at home and could not wait to moveout. She gave him attention that he though was love and we ended up getting married. During the same year, he achieved the rank and of Corporal. c. In October 1989, him and his wife separated. That same month he was promoted to Sergeant and later deployed to Panama to participate in operation "Just Cause". During his deployment he participated in a combat jump in Panama and conducted air assault attacks, night patrols, and experienced sniper fire attacks. He redeployed back to Fort Bragg on 12 January 1990. He was awarded the Combat Jump Wings, Combat Infantryman Badge, and Armed Forces Expeditionary Medal for his participation in the invasion of Panama. d. After returning to Fort Bragg, he began experiencing problems related to his fighting in Panama. These problems included trouble sleeping and nightmares. Additionally, he ended up reunited with his first wife for emotional support. His life began to spin out of control as he was emotionally wounded by is experiences in Panama and his failing marriage. He took his wife and left and was soon declared absent without leave (AWOL) by his unit. e. In May of 1990 he was employed as a design trainee. He kept his AWOL status a secret from everyone he knew except his parents and a few family members. In June 1990 he was arrested and was escorted by a military policeman back to. After arriving in , he states he hitch hiked to Fort Sill where he turned himself in. He was presented with the option to stay at Fort Sill as a Private until his contract was up in October 1990, but he chose to leave and be discharged from the military. f. Upon separation he did not review his DD Form 214, so many of his achievements were left off. He also did not understand the ramifications of an "other than honorable discharge". He states he was emotionally scarred from the events with his wife, the traumatic experiences in Panama, and the perception that his unit and the Army did not care for me anymore. 4. The applicant enlisted in the regular Army on 18 October 1986. 5. His record contains a certificate of achievement (82d Airborne Division), which reflects he successfully completed the Expert Infantryman Badge test at Fort Bragg and was awarded the Expert Infantryman Badge on 10 November 1987, which is not reflected on his DD Form 214. 6. His DA Form 2-1 (Personnel Qualification Record) shows: a. He was promoted to the rank/grade of specialist four (SP4)/E-4 on 1 October 1988. b. His DD Form 2-1 does not address a promotion to the rank/grade of sergeant (SGT)/E-5, however, apart from his DD Form 214, all the evidence pertaining to his separation and/or reason for separation records his rank as SGT. 7. The applicant’s record contains three DA Forms 4187-E, which show the below changes to his duty status: * Present for duty (PDY) to AWOL – 22 March 1990 * AWOL to Dropped from Rolls (DFR) – 21 April 1990 * DFR to Attached/returned to military control (apprehended by civil authorities) – 31 May 1990 8. Court-martial charges were preferred against the applicant on 4 June 1990. His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 22 March 1990 and did remain absent until on or about 31 May 1990. 9. On 5 June 1990 the applicant elected not to undergo a medical separation examination. 10. On 8 June 1990, after consulting with legal counsel, the applicant voluntarily requested discharge for the good of the service under Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10. He understood he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorizes the imposition of a bad conduct discharge or dishonorable discharge. The applicant acknowledged that he made the request of his own free will and was not coerced by any person. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charges 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 were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veteran’s Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State law and encounter substantial prejudice in civilian life because of an under other than honorable discharge. 11. On 8 June 1990, the applicant's immediate commander recommended approval of the request for discharge in lieu of trial by court-martial, with characterization of service under other than honorable conditions. Additionally, she noted the applicant had become disillusioned with the military and retention of the applicant was not in the best interest of the Army. 12. The separation authority approved the recommended discharge on 29 June 1990, directed the applicant be reduced to private (PVT)/E1, and he be issued an under other than honorable conditions discharge. 13. The applicant was discharged on 18 July 1990. His DD Form 214 shows he was discharged under the provision of AR 635-200, chapter 10, by reason of for the good of the service - in lieu of court martial, in the rank/grade of PV1/E-1, and his service was characterized as under other than honorable conditions (Separation Code KFS, Reentry Code RE-3/3B/3C). He completed 3 years, 8 months, and 21 days of net active service had lost time from 22 March 1990 to 31 May 1990. Additionally, his DD Form 214 list the following personal decorations or awards. * Army Achievement Medal * Army Good Conduct Medal * Combat Infantryman Badge * Parachute Badge 14. He provides 9 supporting statements from: a. 3 statements from former service members that served with the applicant in the 82nd Airborne Division wherein they state, in effect, the applicant was a hard worker and conducted his duties in a professional manner. Due to his superior performance, was selected to fill various leadership positions to include leading a team in combat. After returning from deployment and finding out his wife was having an affair, he went AWOL. He was a young Soldier dealing with a divorce, multiple deployments, and recent combat experience in Panama. Additionally, they believe the applicant's request should be granted. b. 6 supporting statements from coworkers and pastors wherein they state, the applicant is a hardworking, devoted husband, natural leader and dedicated person who has always been proud and vocal of his military career. His impressive leadership skills and commitment to colleagues have helped him get promoted multiple times and rise through the ranks as an Area Manager within API Group. Additionally, the applicant and his wife help support their church by reaching out to members, helping with weekly meetings, and giving messages or sermons to the church body. 15. There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for review of his discharge within that board’s 15-year statute of limitations. 16. The pertinent Army regulation in effect at the time provided discharges under the provision of Army Regulation 635-200, chapter 10, where voluntary requests from the Soldier to be discharged in lieu of a trial by court-martial. 17. The applicant provided argument or evidence that the Board should consider in accordance with the published equity, injustice, or clemency determination guidance. 18. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his Under Other than Honorable Conditions characterization of service to Honorable. The applicant, and his counsel, contend that his misconduct is mitigated by the stress of war trauma and other psychosocial stressors. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: Applicant enlisted into the RA on 18 October 1986; Applicant deployed to Panama in support of “Just Cause” December 1989; On 8 June 1990 the applicant requested a discharge in lieu of trial by court marital after being charged for AWOL 20 March 1990 to 31 May 1990; Applicant was discharged 18 July 1990 under AR 624- 200, Chapter 10 with an UOTHC. c. Review of Available Records Including Medical: d. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, his ABCMR Record of Proceedings (ROP), brief form legal counsel, self- authored statement, DD Form 214, as well as documents from his service record and separation. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV) and AHLTA, though they did not contain any data. Lack of citation or discussion in this section should not be interpreted as lack of consideration. e. The applicant asserts that his misconduct was mitigated by the stress of war trauma and his wife’s infidelity. Per his self-authored statement, the applicant began experiencing problems “related to the fighting in Panama. These problems included having trouble sleeping and nightmares. I reunited with my wife, Geana, for some level of emotional support. What I received instead was additional torment and unfaithfulness.” He reports responding emotionally and in a spur of the moment manner to the stressors and went AWOL. A review of supporting letters and memos from friends, colleagues, and fellow service members gives credence to the fact that his actions of going AWOL seem incongruent with the service member he was prior to the deployment and his marital stressors, as well as the man he became after. That said, there are no military medical health records in his electron health record, nor did the applicant provide any additional records to support a mental health diagnosis during his time in service. In addition, no medical records (civilian, military or VA) were provided to support any mental health condition or service connection since his time in service. Though, given lack of electronic health records, and the culture of mental health care and support at the time of his service, it is not uncommon for there to be no record of treatment or formal support. f. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is minimal evidence to support the applicant had a condition or experience at the time of service that mitigated his discharge. However, he contends his misconduct was related to trauma and stress response, he has shared this openly both near the time of misconduct, and in the years since, and per Liberal Consideration guidance, his contention is sufficient to warrant the Board’s consideration. 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’s counsel asserts the applicant experienced stress from trauma of war. (2) Did the condition exist or experience occur during military service? Yes, it is asserted that the mitigating condition was present at the time of misconduct. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The applicant asserts mitigation due a combination of marital stress and war combat stress at the time of his misconduct. There is insufficient evidence beyond self- report that 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 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, and the reason for separation. a. 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. However, the applicant provides supporting statements from friends, former service members, and pastors, who describe him as a hard worker and professional with combat experience in Panama, in support of clemency. He has leadership skills and commitment to colleagues that have helped him get promoted multiple times and rise through the ranks as an Area Manager within API Group. Additionally, he and his wife help support their church. Based on a preponderance of evidence, the Board determined that his 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. The applicant’s narrative reason for separation is based on the fact that he had court-martial charges preferred against him due to his voluntary AWOL. He chose to be discharged in lieu of trial by a court-martial. The appropriate narrative reason for separation is correctly shown on his DD Form 214. Additionally, Separation Code KFS is the correct Separation Code for an enlisted Soldier discharged under chapter 10 of AR 635-200. The corresponding RE Code associated with this Separation Code (at the time) was 3, which is also correctly listed on his DD Form 214. Based on a preponderance of evidence, the Board determined the narrative reason for separation and RE Code he received at separation were 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 18 July 1990 showing his character of service as Under Honorable Conditions, General. 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 the characterization of his discharge to fully honorable or changing the narrative reason for separation and RE Code. 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 (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 Soldier 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 discharge request may be submitted after court-martial charges are preferred against the Soldier, or, where required, after referral, until final action by the court-martial convening authority. Commanders will ensure that a Soldier is not to be coerced into submitting a request for discharge for the good of the service. (1) The Soldier will be given a reasonable time to consult with consulting counsel and to consider the wisdom of submitting such a request for discharge. After receiving counseling, the Soldier may elect to submit a request for discharge for the good of the service. The Soldier 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. (2) A discharge under other than honorable conditions was normally appropriate for a Soldier 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 Soldier's overall record during their current enlistment. For Soldiers who had completed entry level status, characterization of service as honorable was not authorized unless the Soldier's record was otherwise so meritorious that any other characterization clearly would be improper. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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 used for a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 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. 4. Paragraph 15–1 (Secretarial Plenary Authority) states, separation under this chapter is the prerogative of SECARMY. Secretarial plenary separation authority is exercised sparingly and used when no other provision of this regulation applies. Separation under this chapter is limited to cases where the early separation of a Soldier is clearly in the best interest of the Army. Separations under this chapter are effective only if approved in writing by SECARMY or the Secretary’s approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis but may be used for a specific class or category of Soldiers. When used in the latter circumstance, it is announced by special HQDA directive that may, if appropriate, delegate blanket separation authority to commanders with GCMCA for the class of Soldiers concerned. 5. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD code to be entered on the DD Form 214. a. It identifies SPD code "KFS" as the appropriate code to assign enlisted Soldiers who are administratively discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court martial. b. It identifies SPD code "JFF" as the appropriate code to assign enlisted Soldiers who are administratively discharged under the provisions of Army Regulation 635-200, with a narrative reason of " Secretarial Authority". c. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army and Reserve Component Soldiers. (1) The SPD/RE Cross Reference Table in effect at the time of the applicant's separation established the RE code of "4" as the proper RE code to assign to enlisted Soldiers separated with the SPD code of "KFS." (2) The SPD/RE Cross Reference Table in effect at the time of the applicant's separation established the RE code of "1" as the proper RE code to assign to enlisted Soldiers separated with the SPD code of "JFF". 6. Army Regulation 600-8-22 (Military Awards), currently in effect, prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. a. Paragraph 1-27c states, permanent awards of badges, except Basic Marksmanship Qualification Badges, identification badges (less the Guard, Tomb of the Unknown Soldier Identification Badge, and Military Horseman Identification Badge) and the Physical Fitness Badge, will be announced in POs by commanders authorized to make the award. b. Paragraph 8–9 states the basic eligibility criteria for the Expert Infantryman Badge is as follows: (1) Specialty skill identifier and military occupational specialty requirement for the EIB. Candidates must be in a Regular Army status and must possess a primary MOS in CMF 11 or CMF 18; be warrant officers identified as 180A; or be infantry or special operations branch officers serving in infantry positions. (2) Duty requirement for the EIB. All personnel having a CMF 11 or specialty code 11 code, regardless of their present assignment, are eligible to participate in the EIB program. They must meet the prerequisites and take the test with an infantry unit of at least battalion size. (3) Test requirement. Personnel must meet all prerequisites and proficiency tests prescribed by U.S. Army Infantry Center. (4) The authority to test and award the badge to qualified Soldiers are Division Commanders; Commanders of separate infantry brigades and regiments; Commanders of divisional brigades when authority is delegated to them by their division commanders; separate infantry battalion commanders when authority is delegated to them by the commander exercising general court-martial authority over the battalion; Commanders of U.S. Army Training Centers; Commandant, U.S. Army Infantry School; Commanders of Special Forces (SF) Groups; Commanders of separate SF Battalions when authority is delegated to them by the commander exercising general court-martial authority over their units; and Commanders of Reserve Component combat and training divisions and brigade size units are authorized to administer EIB tests and award the badge to qualified personnel in the command. 7. 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. 8. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220011255 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1