IN THE CASE OF: BOARD DATE: 16 August 2023 DOCKET NUMBER: AR20230000834 APPLICANT REQUESTS: upgrade of his characterization of service from Under Honorable Conditions (General) to Honorable. Additionally, he requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show: * any awards and decorations to which he is entitled * deployment credit * he served in C Company, 1st Battalion, 26th Infantry Regiment APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Forms 149 (Application for Correction of Military Record) (two) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), 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 realizes the mistake he made while in the Army. Since leaving the military he has gone back to school and completed the Electrician and Instrumentation Technician training programs. On his DD Form 149, the applicant indicates that Post-Traumatic Stress Disorder (PTSD) and other mental health conditions are related to his request; however, he did not provide any supporting medical documentation. 3. The applicant enlisted in the Regular Army on 7 May 1997, for a period of 4 years. Upon completion of training, he was assigned to a unit in Germany. He was promoted to the rank/grade of sergeant (SGT)/E-5 on 10 March 2000. 4. The following documents show the applicant was assigned to C Company, 1st Battalion, 26th Infantry Regiment based in Germany at the time they were rendered. a. An Oath of Extension of Enlistment document rendered at Camp Monteith, Kosovo on 17 August 1999 shows he extended for a period of six months to meet the service remaining requirement for permanent change of station reassignment to the continental United States. b. A DA Form 1059 (Service School Academic Evaluation Report), dated 10 March 2000, which shows the applicant successfully completed the Primary Leadership Development course conducted at the 7th Army Noncommissioned Officer (NCO) Academy from 9 February 2000 through 10 March 2000. c. Permanent Orders 222-50 issued by Detachment Bravo, 38th Personnel Service Battalion on 8 August 2000, show the applicant was awarded the Army Good Conduct Medal (1st Award) for the period from 7 May 1997 to 6 May 2000. d. A DA Form 2166-7 (NCO Evaluation Report) for the period from March 2000 through August 2000. 5. On 11 September 2000, the applicant departed Germany enroute to Fort Benning, GA. On 27 September 2000, he was assigned to B Company, 1st Battalion, 29th Infantry Regiment. 6. DA Forms 4187 (Personnel Action) show the applicant's duty status was reported as Absent Without Leave (AWOL) from 11 October 2000 until 12 October 2000 and from 18 October 2000 until 25 October 2000. He was counseled each time upon his return and advised that such conduct could result in punishment under the provisions of the Uniform Code of Military Justice (UCMJ) and or administrative separation from the Army. 7. The applicant underwent a pre-separation medical examination on 26 October 2000. He reported that he was in good health; his overall health was the same as it was during his entrance medical examination; he had not been seen or treated by a health care provider, admitted to a hospital, or had surgery; and he had not suffered from any injury or illness while on active duty for which he did not seek medical attention. He was determined to be medically qualified for administrative separation. 8. On 1 November 2000, the applicant accepted field grade nonjudicial punishment (NJP) under the provisions of Article 15, of the UCMJ, for being AWOL from on or about 10 October 2000 until on or about 12 October 2000 and from on or about 18 October 2000 until on or about 25 October 2000. His punishment consisted of reduction from SGT/E-5 to specialist/E-4, forfeiture of $695.00 pay, and restriction for 45 days. Both forfeiture and restriction were suspended, to be automatically remitted if vacated on or before 1 May 2001. He was reduced accordingly, effective 1 November 2000. 9. The applicant was reported AWOL effective 21 November 2000. 10. On 26 November 2000, the applicant was arrested by civil authorities and charged with Criminal Attempted Armed Robbery. His duty status was changed from AWOL to Confined by Civil Authorities (CCA). 11. On 3 January 2001, the applicant underwent a mental status evaluation. The examining psychiatrist determined he: * showed no evidence of mental defect, emotional illness, or psychiatric disorder of sufficient severity to warrant disposition through medical channels * was mentally responsible for his behavior and possessed sufficient mental capacity to understand and participate in the proceedings in which he was involved * he was psychiatrically cleared for any administrative action deemed appropriate by command. 12. On 5 January 2001, the applicant's immediate commander notified the applicant of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, for a pattern of misconduct. The specific reasons for this action were the applicant's multiple incidents of failure to report and his periods of AWOL. He was advised that he was being recommended for a General, under honorable conditions discharge. 13. The applicant's immediate commander formally recommended his separation prior to the expiration of his term of service under the provisions of Army Regulation 635-200, Chapter 14, by reason of a pattern of misconduct. 14. On or about 8 January 2001, the applicant consulted with counsel and was advised of the basis for the contemplated actions to separate him and its effects; of the rights available to him; and the effect of any action taken by him to waive his rights. He requested consulting counsel and representation by counsel and elected to submit statements in his own behalf. However, the available record is void of a statement. 15. On 26 January 2001, the separation authority approved the recommended separation and directed the applicant be discharged with a service characterization of Under Honorable Conditions (General). 16. Orders and the applicant's DD Form 214 show he was discharged on 5 February 2001, under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct with separation code "JKA." He was credited with 3 years, 7 months, and 24 days of net active service this period. His service was characterized as Under Honorable Conditions (General). He had three periods of lost time due to AWOL and confinement. His DD Form 214 shows in: * Block 8a (Last Duty Assignment and Major Command) he was assigned to B Company, 1st Battalion, 29th Infantry Regiment at the time of his separation * Block 12f (Foreign Service), he was credited with 2 years of foreign service * Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), he was awarded or authorized the Army Service Ribbon * Block 14 (Military Education), no indication of completing any military training * Block 18 (Remarks), no indication of any deployments Outside the Continental U.S. (OCONUS) 17. The applicant's record is void of evidence and he has not provided evidence showing: * his specific dates of deployment to Kosovo * that he was diagnosed with PTSD or any other medical or behavioral health condition during his period of service * he was assigned to C Company, 1st Battalion, 26th Infantry Regiment at the time of his separation 18. The applicant petitioned the Army Discharge Review Board (ADRB) for relief. On 14 November 2003, the applicant was informed that after careful review of his application, military records, and all other available evidence, the ADRB determined he was properly and equitably discharged. Accordingly, his request was denied. 19. 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. 20. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his characterization of service from Under Honorable Conditions (General) to Honorable. He contends he experienced PTSD and other mental health conditions that mitigates his misconduct. b. 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 7 May 1997; 2) There was evidence the applicant was deployed to Kosovo in 1999; 3) The applicant was found AWOL twice in October 2000, and on 1 November 2000, the applicant accepted field grade nonjudicial punishment (NJP) for these incidents of being AWOL; 4) He was reported AWOL again on 21 November 2000, and on 26 November 2000, the applicant was arrested by civil authorities and charged with attempted armed robbery; 5) The applicant was discharged on 5 February 2001, Chapter 14-12b, by reason of misconduct. His service was characterized as Under Honorable Conditions (General). c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional hardcopy civilian treatment records were provided for review. d. The applicant asserts he experienced PTSD and other mental health conditions, which mitigate his misconduct. He was provided a Mental Status Exam on 3 January 2001 as part of his separation proceedings. He was not diagnosed with a mental health condition, and he was psychiatrically cleared for administrative action. There is no additional evidence the applicant reported experiencing a mental health condition, including PTSD while on active service. However, there was evidence in JLV that the applicant has been diagnosed and treated by the VA since 2014 for depression. Also, the applicant does receive service-connected disability for PTSD (70%) since October 2022. e. 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 partially 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 of a mental health condition and PTSD that contributed to his misconduct. The applicant has been diagnosed with depression by the VA since 2014 and service-connected PTSD since October 2022. (2) Did the condition exist or experience occur during military service? Yes, the applicant contends he was experiencing symptoms of a mental health condition and PTSD that contributed to his misconduct. The applicant has been diagnosed with depression by the VA since 2014 and service-connected PTSD since October 2022. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial, there is sufficient evidence the applicant was experiencing PTSD while on active service with being diagnosed with service-connected PTSD, and he has also been diagnosed with depression by the VA after this discharge. Avoidant behaviors such as going AWOL are often a natural sequalae to PTSD and depression. However, depression and PTSD do not mitigate the offense of attempted armed robbery, as these conditions do not affect one’s ability to distinguish right from wrong and act in accordance with the right. ? BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, 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 advising official finding partially, sufficient evidence the applicant was experiencing PTSD while on active service with being diagnosed with service- connected PTSD, and he has also been diagnosed with depression by the VA after this discharge. The Board noted that avoidant behaviors such as going AWOL are often a natural sequalae to PTSD and depression. However, depression and PTSD do not mitigate the offense of attempted armed robbery, as these conditions do not affect one’s ability to distinguish right from wrong and act in accordance with the right. 2. The Board determined there is insufficient evidence of in-service mitigation to overcome the misconduct. The Board noted, the applicant provided insufficient evidence of post-service achievements or letters of support that could attest to his honorable conduct that might have mitigated the discharge characterization. The applicant was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. Therefore, amending the previous board’s decision is without merit and relief was denied. 3. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. ? 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: Except for the correction addressed in Administrative Note(s) below, the Board found 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. ADMINISTRATIVE NOTE(S): 1. Army Regulation 635-5 (Separation Documents), in effect at the time, and Army Regulation 635-8 (Separation Processing and Documents), currently in effect, state the DD Form 214 is required to list all of a separating Soldier's: * awards and decorations awarded or authorized during all periods of service in Block 13 * formal, in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214 of at least one week or 40 hours duration in Block 14 * any/all OCONUS deployments completed during the period of the DD Form 214 being created in Block 18 2. Army Regulation 600-8-22 (Military Awards), currently in effect, states: a. The Overseas Service Ribbon is awarded for successful completion of overseas tours. Numerals are used to denote the second and subsequent awards of the Overseas Service Ribbon. b. The Noncommissioned Officer (NCO) Professional Development Ribbon is awarded to Active Army, Army National Guard, and U.S. Army Reserve Soldiers for successful completion of designated NCO professional development courses. Soldiers who complete Primary Leadership Development Course are authorized to display the basic ribbon. 3. The evidence of record confirms the following: * Permanent Orders awarded the applicant the Army Good Conduct Medal (1st Award) * The applicant completed Primary Leadership Development Course on 10 March 2000 * The applicant completed an overseas tour in Germany 4. Based on the foregoing, amend the applicant’s DD Form 214, ending 5 February 2001, as follows: a. Add the below-listed awards to Block 13: * Army Good Conduct Medal (1st Award) * NCO Professional Development Ribbon * Overseas Service Ribbon b. Add the following comment to Block 14: "PRIMARY LEADERSHIP DEVELOPMENT COURSE, 4 WEEKS, 2000." REFERENCES: 1. Title 10, USC, 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, USC, 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. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b states 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 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if merited by the Soldier’s overall record. 4. Army Regulation 635-5-1 (Separation Program Designator Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. It states that the separation code "JKA" is an appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14, by reason of misconduct. 5. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Navy Records (BCM/NR) to carefully consider the revised post-traumatic stress disorder (PTSD) criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions (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. 8. Army Regulation 635-8 prescribes policy and procedural guidance relating to transition management. It consolidates the policies, principles of support, and standards of service regarding processing personnel for transition. Chapter 5 states the DD Form 214 is a summary of the Soldier’s most recent period of continuous active duty. It provides a brief, clearcut record of all current active, prior active, and prior inactive duty service at the time of REFRAD, retirement, or discharge. Paragraph 5-6 provides detailed instructions for data required in each block of the DD Form 214. It states, in part, for: a. Block 13 – List all federally recognized awards and decorations for all periods of service. b. Block 14 – List all formal, in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214 of at least one week or 40 hours duration. Include course title, length in weeks, and year completed. c. Block 18 (Remarks) – For active duty Soldiers, list any/all OCONUS deployments completed during the period of the DD Form 214 being created as follows: "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates)." //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000834 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1