IN THE CASE OF: BOARD DATE: 30 June 2023 DOCKET NUMBER: AR20230000041 APPLICANT REQUESTS: Reconsideration of his prior denials for an upgrade of his under other than honorable conditions (UOTHC). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) decisional documents (three) * Letters of Support (three) 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 Dockets Number AR20120010459 on 15 January 2013 and AR20190009519 on 23 September 2019, respectively. 2. The applicant states: a. While on active duty, he learned that his 2 year old son was dying of Leukemia, and he decided to leave to be with his son and family without getting proper approval. Less than three months after his departure, his son passed away. After his son's death, he spiraled into deep depression and attempted suicide. During his absence he also suffered a fractured skull and a broken jaw in four places. He recovered from the injuries that he sustained from the attempted suicide. b. He returned to Fort Sheridan and was never able to mentally adjust. Also, the lingering effects of his physical injuries were difficult to overcome. He does not recall receiving any counseling services prior to his discharge and he continues to suffer from depression and associated mental health conditions. The VA granted him service- connected disability compensation due to mental health conditions that he suffers from. He would like to continue to receive service-connected disability compensation and the full use of the VA; however, he needs his discharge status changed. 3. On the applicant's DD Form 149, he indicates mental health as a contributing and mitigating factor in the circumstances that resulted in his separation. 4. The applicant enlisted in the Regular Army on 30 May 1978 and completed training with award of military occupational specialty 12B (Combat Engineer). The highest grade he held was E-4. 5. The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates for the indicated offenses: * 28 July 1978, for disobeying a lawful order to shine his boots and clean his personal area * 12 April 1979, for theft of a radio from a fellow Soldier * 6 February 1981, for being drunk and disorderly; his punishment for this offense included reduction to E-3 6. Court-martial charges were preferred against the applicant on 27 July 1981 for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with being absent without leave (AWOL) from on or about on or about 25 March 1981 until on or about 21 July 1981. 7. On 28 July 1981, the applicant consulted with legal counsel 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. Subsequent to receiving legal counsel, the applicant formally and voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – 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 VA, and he could be deprived of his rights and benefits as a Veteran under both Federal and State laws. b. The applicant submitted a statement in his own behalf stating that he could no longer adjust to Army life and wished to be discharged. 8. On 29 July 1981, the applicant underwent a mental status evaluation, and the examining physician made no annotations pertaining to any extenuating circumstances existing in the applicant's personal life. The physician noted no unusual behavioral or mental deficiencies and determined he was mentally responsible and had the mental capacity to understand and participate in administrative separation proceedings. 9. The separation authority approved the applicant's request for discharge in lieu of court-martial on 13 August 1981, and directed that the applicant be reduced to E-1 and receive an UOTHC Discharge Certificate. 10. The applicant was discharged on 2 September 1981 in the grade of E-1. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635- 200, Chapter 10, for conduct triable by court martial and his service was characterized as UOTHC. He was credited with 2 years, 11 months, and 7 days of net active service with 37 days of excess leave and 118 days of lost time. His awards are listed as the Army Service Ribbon, Overseas Service Ribbon, and the Marksman Qualification Badge with Rifle bar/. 11. 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. 12. The ABCMR denied the applicant's request for upgrade on 15 January 2013, stating the evidence presented did 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. 13. The ABCMR denied the applicant's request a second time on 23 September 2019 stating that the Board found insufficient evidence of in-service mitigation to overcome the misconduct. The Board determined that the applicant’s character of service was not in error or unjust. 14. The applicant provides: a. A VA rating decision, dated 16 April 2021, which shows he was granted a service-connected disability rating for major depressive disorder, rated at 70%. He was informed on 9 February 2021, that the VA proposed to sever service connection for his condition due to his character of discharge and this was a bar to VA benefits, effective 1 July 2021. b. Three letters of support that describe the applicant as honest, responsible, trustworthy, and of upstanding character. He goes out of his way to help family, friends, and others in need. 15. In determining whether to grant relief the Boards for Correction of Military/Navy Records (BCM/NR) can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 16. MEDICAL REVIEW: a. Background: The applicant is requesting a reconsideration of his prior denials for an upgrade of his under other than honorable conditions (UOTHC). The applicant is requesting an upgrade to “general” under honorable conditions. He contends that depression was a mitigating factor. 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: * The applicant enlisted in the Army National Guard (ARNG) on 16 July 1997. The applicant enlisted in the Regular Army on 6 January 1999. * Applicant deployed to Kosovo from 15 May 1999 to 7 November 1999. * Court-martial charges were preferred against the applicant on 2 June 2000 for being absent without leave (AWOL) from on or about 1 May 2000 until on or about 4 May 2000, and for multiple occasions of wrongful use of marijuana between approximately 19 February 1999 and 1 May 2000. * His full separation packet is not available. However, based on the DD 214 and memos approving his discharge, it appears the applicant requested separation per AR 635-200, Chapter 10, in lieu of trial by court martial and it was granted. * Applicant was discharged on 14 July 2000, under the provisions of AR 635-200, Chapter 10, with his characterization of service as UOTHC. c. Review of Available Records Including Medical: 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), his DD 214, Department of Veterans Affairs decisional documents (three), letters of support (three), 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. Lack of citation or discussion in this section should not be interpreted as lack of consideration. This applicant stated that while he was on active duty he learned that his 2 year old son was dying of leukemia and he went AWOL to be with his family (he passed away within 3 months). He noted he spiraled into a deep depression and attempted suicide, sustaining significant injuries (fractured skull, broken jaw). He reported never adjusting after this. d. He was court martialed for conduct related to drug use and alcoholism (file notes AWOL and marijuana use), which he believes were caused by mental health issues due to his military service. He asserted that PTSD and other mental health mitigate his discharge. There are no medical nor mental health records available from his time in service. Outside of self-report, there is no evidence that the applicant was ever diagnosed with PTSD. There is currently no indication that he held any other mental health diagnoses during his time in service, though his charges would suggest at minimum struggling with substance use. e. The applicant has one encounter with the VA from May 2023, where he was seen for an intake with the homeless team. He was described as being “unsheltered homeless.” Outside of this one interaction, the applicant does not have any other electronic health records available, and he did not supply any medical or mental health records to substantiate his assertion. f. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient 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 PTSD and other mental health concerns, 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 asserts PTSD and other mental health as a mitigating factor. 2. Did the condition exist or experience occur during military service? Yes, the applicant contends a mitigating condition was present during his time in service. 3. Does the condition or experience actually excuse or mitigate the discharge? No. There is insufficient evidence at this time to support that the applicant was experiencing a mitigating condition during his time in service. There is no medical documentation to support a diagnosis of PTSD or any other mental health conditions, however this is not uncommon given the lack of electronic health records at the time of his service. His VA electronic health records (EHR) also do not list any mental health condition. However, the applicant’s service record does indicate repeated concerns with his use of marijuana (hashish). Of note, substance use is often a self-medicating behavior, used to avoid and mask symptoms, and this can be associated with the natural history and sequelae of numerous conditions, to include PTSD. But his substance use alone is not sufficient to establish history of a condition during active service. And substance use disorders are not typically a mitigating condition as a stand-alone diagnosis. In addition, going AWOL is an avoidant behavior consistent with the natural history and sequalae of certain mental health conditions, to include PTSD. Like substance use, going AWOL is also not sufficient to establish history of a condition during active service. That said, the applicant contends he was experiencing a mental health condition that mitigated his discharge, and per Liberal Consideration, his contention is sufficient to warrant the board’s consideration. g. An extra note, there is no indication that the applicant was sent for a substance use evaluation or treatment. This is rather surprising. Even one incident of use would typically lead to a referral to the Army Substance Abuse Program (ASAP). Again, there may be no evidence due to lack of electronic health records at that time. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the medical records and conclusions of the advising official. The Board noted there is currently no indication that he held any mental health diagnoses during his time in service. The Board concurred with the advisory official finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of PTSD diagnosis or post-service achievements in support of a clemency determination. Based upon 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 to amend the decision of the ABCMR set forth in Docket Number AR20190009519 on 23 September 2019. 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 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. 2. Army Regulation 15-185 (ABCMR) sets forth procedures for processing requests for the correction of military records. Paragraph 2-15a governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR if the decision has not previously been reconsidered. The applicant must provide new evidence or argument that was not considered at the time of the ABCMR's prior consideration. 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. 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 Discharge Review Boards and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including post-traumatic stress disorder; 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. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards 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.) AR20230000041 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1