IN THE CASE OF: BOARD DATE: 22 August 2023 DOCKET NUMBER: AR20230000324 APPLICANT REQUESTS: an upgrade of his characterization of service from under other than honorable conditions to under honorable conditions (general) or honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), 20 September 2022 • self-authored statement, 19 May 2022 • Diploma (U.S. Army Field Artillery Training Center, Fort Sill, OK), 19 January 1989 • 2 Certificate of Achievement, 5 March 1989 to 2 July 1989 • 3 DA form 87 (Certificate of Training), 18 May 1990 • Certificate of Completion (Central Texas-College Europe Campus), 16 August 1990 • Permanent Order 76-23 (369th Personnel Service Company), 3 December 1991 • DD Form 214 (Certificate of Release or Discharge from Active Duty), 15 October 1993 • 1 page from medical file, 16 May 2013 • Certificate of completion (Certified Forklift Driver), 25 June 2013 • Supporting statement, 12 May 2022 • Department of Veteran Affairs (VA Initial post-traumatic stress disorder (PTSD) disability benefits questionnaire, 24 May 2022 • VA Rating Decision, 24 August 2022 • Certificate of Commendation (VII Corps, Saudi Arabia), undated • Certificate of Appreciation and letter (U.S. Army Freedom Team), undated 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, in effect: a. He has suffered with PTSD for years and has been getting treatment and medication that help stabilize his condition. He served in the Army as a good solider, receiving several awards for training and conduct which made him proud. b. On 16 January 1991 his life changed as he began to hear air strikes and bombs exploding. He had just turned 21 years old and all he had was his fellow Soldiers and hidden fears in his head wondering if he was going to die away from his family. The fear of chemical weapons, riding past blown up tanks, seeing dismantled bodies in foxholes, and burning wells lighting up the sky while breathing in the smoke, wondering if he was going to make it home alive. He still plays these events over and over in his mind. c. He did not know how messed up he had become until he was honest with his psychiatrist. Looking back and realizing the dead bodies he was saw were real, thinking it could have been him dead and his family receiving a Red Cross message. d. He no longer has the right state of mind. He deals with anxiety, trust issues, homelessness, drinking, nightmares, and thoughts of no longer wanting to live. Going to war killed his dreams of wanting to be a Drill Sergeant and wanting to do 20 years and retire from the Army like his dad did. He has been applying to upgrade his characterization of service for over 20 years. It breaks his heart that his discharge from the Army was not Honorable. e. The applicant checked a block on his application indicating his request is related to “PTSD” and “Other Mental Health.” 3. The applicant enlisted in the Regular Army on 27 September 1988 and subsequently reenlisted on 24 October 1991. He was trained in and held military occupational specialty 13B (Cannon Crewman). He served in Saudi Arabia in support of Operation Desert Storm from 1 January 1991 to 16 June 1991 4. He provides 10 pages of military correspondence from 19 January 1989 to 3 December 1991 to include: • Military school diploma 2 certificates of achievement • 3 Certificates of training Certificate of completion • Award orders Certificate of Appreciation • Certificate of Commendation 5. The applicant’s record contains two DA Forms 4187 (Personnel Action), which show the below changes to his duty status: Present for Duty (PDY) to Absent Without Leave (AWOL) – 13 April 1993 and AWOL to PDY – 16 June 1993 6. On 21 June 1993, court martial charges were preferred the applicant. His DD Form 458 (Charge Sheet) shows he was charged with violation of Article 86 (AWOL), one specification: the applicant did, on or about 13 April 1993, without authority, absent himself from his unit and did remain so absent until on or about 16 June 1993. 7. On 21 June 1993, after consulting with legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial, under Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10. 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 was 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. 8. On 21 June 1993, he elected not to undergo a separation medical examination. 9. On 6 August 1993 and 12 August 1993, the applicant's immediate and intermediate commander recommended approval of the request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service, with an under other than honorable conditions characterization of service. 10. On 10 September 1993, the separation authority approved the recommended discharge under the provisions of AR 635-200, chapter 10, for the good of the service, with an under other than honorable conditions characterization of service. 11. The applicant's DD Form 214 shows he was discharged on 15 October 1993, under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial, in the rank/grade of private (PV1)/E-1. His service was characterized as under other than honorable conditions (Separation Code KFS; Reentry Code 3). He completed 4 years, 10 months and 15 days of net active service. He was awarded/authorized: • Army Commendation Medal • Army Good Conduct Medal • Southwest Asia Service Medal with 3 bronze stars • Kuwait Liberation Medal • Army Service Ribbon • Overseas Service Ribbon • Marksman Marksmanship Qualification Badge (M-16)/Grenade Bars 12. There is evidence he applied to the Army Discharge Review Board (ADRB) for review of his discharge. A letter dated 12 November 1998, shows the ADRB determined he was properly and equitably discharged and his request for a change in the character and/ or reason of his discharge was denied. 13. He provides: a. 1 page from a medical evaluation (The Center for Health Care Services Evaluation Management), shows the applicant underwent a psychiatric evaluation on 16 May 2013. (1) He admitted to having many regrets, including joining the military. He said he does not interact with people. He said that he has experienced too many people that he loved "walk out of my life." and he does not let people get so close to hurt him. He reported he has spent a lot of his life chasing his 2nd ex-wife (who has re-married) and his children. He said that he will not let another woman in his life because his previous marriage helped him become a better man and no one else should benefit from the work that she did to make him a better man. He admits that he contributes to his own depression, not seeking happiness. He said that he gets depressed around the birthdays of his deceased loved ones; he would do a small ceremony to remember their lives but then he ends up feeling lonely and sad. The applicant admits to using drugs and alcohol to cope with his emotional pain. He said that he moved to San Antonio to start a new life, away from drugs; he also wanted to be around his grandchildren. He says that he is running from the "demons" in his life. (2) He admitted to experience trauma during his military service in IRAQ (Operation Iraqi Freedom). He avoids watching movies about war because of his experiences in Iraq. He admitted to having nightmares as well as flashbacks. He cannot sleep at times and there are other times when he chooses not to sleep. He has a sense of foreshortened future and experiences with “paranormal” activity. b. A certificate of completion, dated 25 June 2013, shows he obtained a forklift driver’s license. c. a supporting statement from the applicant’s sister, dated 12 May 2022, wherein she states, in effect (1) He has always been a great and smart person who is always willing to help others. He wanted to serve his country and join the Army, like their father did. She was very concerned about him joining the military because she knew how it changed their dad and she didn’t want the same for the applicant. She states he took the passing of their grandmother very hard, because he could not be there to take care of her. (2) She does not know what the applicant went through while he was fighting in Operation Desert Storm, but it affected him greatly. It caused him to be a very dark and secluded person, ostracizing himself from the rest of their family, his children, friends, society, and grandchildren. He used to be a very outgoing person but being in the war changed him. (3) He has tried to commit suicide after taking care of their deceased mother. He was also the one who found their father deceased, in the same home, a few years after their mother had passed. He has been homeless and running from life. He has started to become stable with the help that the VA is trying to provide to him. She hopes he can help the help he needs. d. A VA Initial PTSD Disability Benefits Questionnaire shows the applicant underwent an examination for PTSD on 24 May 2022. The examination determined the applicant met multiple criteria for a PTSD diagnosis to include: Alcohol abuse, Nicotine dependance, Bipolar disorder. e. A VA rating decision, dated 24 August 2022, shows the applicant was granted a service-connected rating for PTSD, for treatment purposed only. 14. 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. 15. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 16. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his characterization of service from under other than honorable conditions (UOTHC) to under honorable conditions (general) or honorable. He contends he had mental health conditions including PTSD that mitigates his misconduct. 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 27 September 1988; 2) The applicant served in Saudi Arabia in support of Operation Desert Storm from 1 January-16 June 1991; 3) On 21 June 1993, court martial charges were preferred the applicant for being found AWOL from 13 April-16 June 1993; 4) The applicant was discharged on 15 October 1993, Chapter 10, for the good of the service – in lieu of court-martial. His service was characterized as UOTHC. b. 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) was also examined. The applicant asserts he experienced mental health conditions including PTSD, while he was on active service. There is sufficient evidence the applicant was deployed to a combat environment, but there is insufficient evidence he reported mental health symptoms while on active service. Review of JLV provided evidence the applicant has been diagnosed and treated for service-connected mental health conditions. The applicant was awarded VA treatment for his service-connected conditions of PTSD, bipolar disorder, and major depression since 2022. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence to support the applicant had condition or experience that mitigated his misconduct. 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 symptoms mental health conditions including PTSD that contributed to his misconduct. In addition, he has been diagnosed with service-connected PTSD, bipolar disorder, and major depression for treatment purposes since 2022. (2) Did the condition exist or experience occur during military service? Yes, the applicant contends he was experiencing symptoms mental health conditions including PTSD that contributed to his misconduct. In addition, he has been diagnosed with service-connected PTSD, bipolar disorder, and major depression for treatment purposes since 2022. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes, there is sufficient evidence the applicant was exposed to a combat environment and been diagnosed with service-connected PTSD, bipolar disorder, and major depression. Avoidant behavior such as going AWOL is a natural sequala of these mental health conditions. Therefore, it is recommended the applicant’s discharge be upgraded. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was 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, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was charged with commission of an offense (AWOL) punishable under the UCMJ with a punitive discharge. After being charged, he 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 result in an under other than honorable conditions character 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 sufficient evidence of in-service mitigating factors to overcome the misconduct. Based on a preponderance of evidence, the Board determined that a general discharge is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 xx: xx: xx: GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for 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 15 October 1993 showing his character of service as Under Honorable Conditions, General. • Separation Authority: No Change • Separation Code: No Change • Reentry Code: No Change • Narrative Reason for Separation: No Change 8/22/2023 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 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 discharge request may be submitted 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 be coerced into submitting a request for discharge for the good of the service. The member 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 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 discharge authority may direct an honorable or general discharge if such are merited by the member's overall record during the current enlistment. 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. d. A discharge under other than honorable condition is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct and for the good of the service. 3. 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. 4. 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//