IN THE CASE OF: BOARD DATE: 7 June 2023 DOCKET NUMBER: AR20230000332 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. Additionally, he requests to appear before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) with personal statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Clinical Summary * Character Reference Letter 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 he served 5 years and 2 months, he had no Article 15’s and performed all of his duties serving his country and giving 100 percent. He was depressed, being 19-years old and away from his entire family for the first time. 3. By self-authored statement, the applicant contends he had never worn boots before entering into the military, which started to give him back problems. The doctor he was seeing in the military for electric shock treatment told him to get a discharge or suck it up. He continued training, got married only to find out later that his son by his wife was not his son. He was in Germany away from family and support. He became depressed and mentally unstable. His company commander gave him no support in dealing with his issues. If he would have had proper support from his command, he could have continued his Army career. He is still depressed and has many health issues. He desires an upgrade of his discharge to get the proper help he needs. 4. On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD) and other mental health issues, are related to his request as contributing and mitigating factors in the circumstances that resulted in his separation. 5. The applicant enlisted in the Regular Army on 19 September 1995. He was awarded military occupational specialty 11M (Fighting Vehicle Infantryman). He reenlisted on 17 December 1997, for a 6-year term of service. 6. The applicant served in Germany from 17 October 1999 through 16 October 2002. 7. The applicant surrendered to military authorities on 7 March 2001 at Fort Benning, GA. 8. He was apprehended by civilian authorities at Paducah, KY, on 22 April 2003. During an interview on 1 May 2003, he admitted to being absent without leave (AWOL) for two periods of time. 9. Court-martial charges were preferred against the applicant on 1 May 2003 for violations of the Uniform Code of Military Justice. His DD Form 458 (Charge Sheet) shows he was charged with two specifications of AWOL from on or about 5 November 2000 through on or about 7 March 2001 and from on or about 10 March 2001 through on or about 22 April 2003. 10. Subsequent to receiving legal counsel on 1 May 2003, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service. a. In his request for discharge, he acknowledged 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 Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He further understood that there was no automatic upgrading nor review by any government agency of a less than honorable discharge. b. He elected to submit a statement in his own behalf, which is void from the available record. 11. On 5 May 2003, the applicant's commander recommended approval of his request for separation under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. He recommended the issuance of an UOTHC discharge. 12. The separation authority on an unspecified date approved the applicant's request for discharge. He directed his reduction to the lowest enlisted grade and the issuance of an UOTHC Discharge Certificate. 13. The applicant was discharged on 15 May 2003. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. His service was characterized as UOTHC. He was credited with completing 5 years, 2 months, and 2 days of net active service this period, with 897 days of lost time and 8 days of excess leave. 14. 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. 15. The applicant provides a clinical summary from Pathways of Tennessee, dated 31 May 2022, which shows a diagnosis of Dysthymic Disorder with an onset date of 12 May 2014. He also provides a character reference letter from his mother, dated 29 August 2022, which attests to the applicant being depressed and different once he left the military. 16. Published guidance to the Service Boards for Correction of Military/Navy Records (BCM/NR) clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records, and/or submitted documents in support of the petition. 17. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. The applicant contends that PTSD and other mental health concerns are mitigating factor in his discharge. 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 in the RA on 19 September 1995. He reenlisted 17 December 1997. • On 1 May 2003 court-martial charges were preferred. He was charged with two specifications of AWOL, from on or about 5 November 2000 through on or about 7 March 2001 and from on or about 10 March 2001 through on or about 22 April 2003. • The applicant requested discharge under AR 635-200, Chapter 10, in lieu of trial by court martial. The request was accepted and approved. • The applicant was discharged on 15 May 2003, under AR 635-200, Chapter 10, with an UOTHC characterization of service. 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), a clinical summary, a character reference letter, 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 minimal data was available. Lack of citation or discussion in this section should not be interpreted as lack of consideration. e. In his statement, the applicant asserts that he was depressed being away from home and dealing with marital concerns, with minimal support. On his application he also indicated PTSD was a mitigating factor. The applicant provided a clinical summary dated 31 May 2022 from a treatment facility that listed his diagnoses as Dysthymic Disorder and Cannabis Dependence with an onset date listed of 12 May 2014. Minimal detail is given in the summary, and there is no indication that his depression started during his time in service. A character reference provided by his mother stated he was depressed and “different” while in and once he left the Army. There is no evidence that the applicant was ever diagnosed with a mental health condition, nor engaged in mental health care, while he was in the Army, nor has he ever been diagnosed with PTSD. Though, given lack of electronic health records at the time of his service, it is not uncommon for there to be no record of treatment or formal support. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is some evidence to support the applicant may have had a condition or experience at the time of service that mitigated his discharge. 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 contends PTSD and other mental health concerns are a mitigating factor. 2. Did the condition exist or experience occur during military service? Yes, he contends he was depressed during his time in service. It is unclear when he was attesting to having PTSD. 3. Does the condition or experience actually excuse or mitigate the discharge? Partial. There is no medical documentation from his time in service to support PTSD nor any other mental health condition. However, the applicant contends he was depressed and a letter from his mother states she also saw that he was depressed both during and after his service. The applicant has since been diagnosed with Dysthymic Disorder, though this did not occur until approximately 11 years after his time in service. There is no indication that he was ever diagnosed with PTSD. Of note, going AWOL is an avoidant behavior consistent with the history and sequalae of certain mental health conditions, to include depression and PTSD. But going AWOL is not sufficient to establish history of a condition during active service. That said, the applicant and his mother contend he was experiencing a mental health condition that mitigated his misconduct, and per Liberal Consideration his contention is sufficient to warrant the board’s consideration. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, 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 that he was ever diagnosed with PTSD, or diagnosed with a mental health condition, nor engaged in mental health care, while he was in the Army in support of a clemency determination. The Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to an honorable discharge. Therefore, the Board denied relief. 2. The applicant’s request for a personal appearance hearing 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 hearing is not necessary to serve the interest of equity and justice in this case. 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 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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. 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the 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. c. Chapter 10 provided 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 UOTHC discharge was normally considered appropriate. 5. 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/NR) 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. 6. 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; 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. 7. 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, 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) AR20230000332 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1