IN THE CASE OF: BOARD DATE: 14 September 2023 DOCKET NUMBER: AR20230000986 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions (general) or honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored letter * Medical documents 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 his discharge was wrong and unjust; no investigation was done. In 1995, he started having multiple eye infections of an unknown cause. At one time his eye infection was so bad they were going to put him on chemotherapy. He almost lost his eyesight. Those eye infections were extremely painful, and he couldn't see to do his job. After an extended period of time, he was reassigned to a headquarters company. None of his chain of command counseled him as to why he was being reassigned. The stress was really bad; he even went to mental health. He didn't get an appointment with the doctor because it was going to be several months out. At that point he was in a crisis. The bullying from his chain of command was getting unbearable. He went from being a very good Soldier to being tagged a problem Soldier. One day he had enough and went absent without leave (AWOL); it was for his own safety and well-being. He felt like it was the best decision at the time. None of his chain of command or peers even called to see where he was or even came by his residence to check on him. During that time he received extensive pastoral counseling and much encouragement to turn himself in and put this behind him. He turned himself in and was out processed within a week. 3. The applicant enlisted in the Regular Army on 29 May 1991. He reenlisted on 16 December 1993 and again on 8 June 1995. The highest grade he attained was E-4. 4. Court-martial charges were preferred against the applicant on 14 August 1997 for violations of the uniform code of military justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with going AWOL from on or about 10 January 1997 until on or about 11 August 1997. 5. On 14 August 1997, 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 a bad conduct discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), Chapter 10, 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 Veterans Administration, and he could be deprived of his rights and benefits as a Veteran under both Federal and State laws. b. He declined to submit a statement in his own behalf. c. He declined a physical evaluation prior to separation. 6. On 21 October 1997, the applicant's commander recommended approval of the applicant's request for discharge and further recommended the issuance of an UOTHC discharge. 7. By legal review on 4 November 1997, the applicant s Chapter 10 separation action was found to be legally sufficient for further processing. 8. Consistent with the chain of command s recommendations, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial on 5 November 1997, and directed the issuance of a UOTHC discharge. 9. The applicant was discharged on 21 November 1997. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He completed 5 years, 10 months, and 20 days of net active service this period with 212 days of lost time. He was awarded or authorized the Army Good Conduct Medal, National Defense Service Medal, Army Service Ribbon, Expert Marksmanship Qualification Badge with Pistol Bar, and an Expert Marksmanship Qualification Badge with Grenade Bar. 10. The applicant's DD Form 214 does not show his continuous honorable active service period information that is required for members who honorably served their first term of enlistment (see Administrative Notes below). 11. The applicant provides medical documents that detail his various injuries and illnesses, including treatment for eye infections, post-traumatic stress disorder (PTSD), anxiety, and depression. These documents are provided in their entirety for the Board s review within the supporting documents. 12. 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. 13. In reaching its determination, the Board can consider the applicant's petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 14. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting an upgrade of his 21 November 1997 discharge characterized as under other than honorable conditions. He states I believe this discharge to [be] wrong and unjust. No investigation was done. He states in his self-authored letter: In 1995, I started having multiple eye infections of an unknown cause . At one time my eye infection was so bad that they were going to put me on chemotherapy because I almost lost my eyesight. An outside Eye specialist doctor made recommendations to the army doctor and they were able to get control of the eye infection. Those eye infections were extremely painful I couldn't see to do my job much less drive to work. After an extended period of time, I was reassigned to a headquarters company to do a clerk job in the motor pool ordering PLL parts. None of my chain of command counseled me as to why I was being reassign The stress was really bad. I even went to mental health. Didn't even get an appointment with the doctor it was going to be several months out. At that point I was in a crisis. On top of that, I was trying to reconcile a failed marriage. About that time, I had what I now understand to be a Bell's palsy type of mini stroke. Went on sick call sent me to the hospital for some testing by the time they really started looking into it I was fine. I was continually bullied even worse after that episode by my chain of command. About that time, I had another eye infection The bullying from my chain of command was getting unbearable. I went from being a very good soldier to being tagged a problem soldier. One day I just had enough. I went AWOL. It was for my own safety and well-being . I felt like it was the best decision at the time. None of my chain of command or peers even called to see where I was or even came by my residence off post to check on me for several months. During that time, I received extensive pastoral counseling and much encouragement to turn myself in and put this behind me. I turned myself in and was out processed within a week. I was discharged in 1997. Because of the multiple very painful eye infections, the Bell's palsy stroke that went undiagnosed, the bullying for my chain of command and peers, I believe that I severely suffer from PTSD because of these events. c. The Record of Proceedings details the applicant s military service and the circumstances of the case. His DD 214 for the period of Service under consideration shows he entered the regular Army on 29 May 1991 and was discharged on 21 November 1997 under the separation authority provided chapter 10 of AR 635-200, Active Duty Enlisted Administrative Separations (26 June 1996): Discharge in Lieu of Trial by Court-Martial. The DD 214 show lost time under 10 USC 972 from 10 January 1997 thru 10 August 1997 (213 days). d. A Charge Sheet (DD form 458) shows the applicant was charged with absence without leave from 10 January 1997 thru 11 August 1997. e. On 14 August 1997, the applicant voluntarily requested discharge in lieu of trial by court-marital under chapter 10 of AR 635-200. The battalion commander approved his request and an under other than honorable characterization of service on 5 November 1997. f. A Darnall Army Community Hospital Emergency Care and Treatment encounter shows the applicant was evaluated for a complaint of a right eye infection on 5 December 1996: 29-year-old male with complaint of right eye infection. States has recurrent eye infections. Seen by Dr. F. has Reiter s syndrome. g. He was discharged with a diagnosis of iritis and given a 6 December 1996 follow- up appointment with ophthalmology. From the American Family Physician website: Reactive arthritis, also called Reiter's syndrome, is the most common type of inflammatory polyarthritis in young men. It is sometimes the first manifestation of human immunodeficiency virus infection. An HLA-B27 genotype is a predisposing factor in over two thirds of patients with reactive arthritis. The syndrome most frequently follows genitourinary infection with Chlamydia trachomatis, but other organisms have also been implicated. Treatment with doxycycline or its analogs sometimes shortens the course or aborts the onset of the arthritis. Reactive arthritis may also follow enteric infections with some strains of Salmonella or Shigella, but use of antibiotics in these patients has not been shown to be effective. (https://www.aafp.org/pubs/afp/issues/1999/0801/p499.html) h. There was no additional evidence supporting a diagnosis of Reiter s Syndrome. Iritis as described on the Cedar-Sinai website: Iritis is the inflammation of the colored part of your eye (iris). It also affects the front part of the eye between the cornea and the iris (anterior chamber). Iritis can lead to serious problems. It can cause severe vision loss and even blindness. (https://www.cedars-sinai.org/health-library/diseases-and- conditions/i/iritis.html#:~:text=points%20about%20iritis- ,Iritis%20is%20the%20inflammation%20of%20the%20colored%20part%20of%20 your,autoimmune%20disease%20are%20major%20causes) i. There are numerous causes for the condition and the cause for many patients is not known. Depending on the cause, treatment ranges from symptomatic care to intravenous immunosuppressive therapy. j. No additional contemporaneous medical documentation was submitted with the application and his period of service predates AHLTA. k. He underwent a mental health evaluation at a Veterans Hospital Administration facility on 26 January 2023: Mr. [Applicant] is a 55-year-old man being seen for the first time by this physician for consult for depressed mood and anxiety. Patient notes that at the urging of his mother and fianc e he is coming to get help. Patient notes that his stepfather who he was close to died in September which has affected him negatively. Notes he has been under a great deal of stress recently. He notes that he has had mood issues since leaving the Army but shoved them in the corner. Patient notes that he used to drive when in the military and had severe eye problems. He had iritis. Notes that he felt tagged as a problem soldier due to his eye issues. He notes he was missing training and formation secondary to these eye issues. Felt he was harassed at this time. He did not come to work at that time and went AWOL. Patient wants help with mood and anxiety. l. The provider diagnosed him with Major Depressive Disorder, moderate, recurrent; Generalized Anxiety Disorder; and Alcohol Use Disorder in Remission. Care was initiated with an antidepressant medication (Zoloft) and evidence-based therapy. When seen in follow-up on 9 March 2023, he stated I m doing much better. m. Review of the applicant s records in JLV show the applicant has received care as a non-service-connected Veteran since 2019 and was diagnosed with major depressive disorder in December 2019 and anxiety disorder in February 2023. He has no ocular related diagnoses and no service-connected disabilities. n. There is no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his UCMJ violation; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his discharge. o. It is the opinion of the ARBA medical advisor that a discharge upgrade is not warranted. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes: Major depressive disorder and anxiety disorder (2) Did the condition exist or experience occur during military service? No: The major depressive disorder was diagnosed in December 2019 and anxiety disorder in February 2023. (3) Does the condition or experience actually excuse or mitigate the discharge? N/A BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense 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 applicant's claim regarding his physical and mental health and the review and conclusions of the ARBA Medical Advisor. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by a behavioral health condition. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. The Board concurred with the corrections described in Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :xx :xx :xx 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 making the corrections described in Administrative Note(s) below. 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 character of service. 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): A review of the applicant's record shows his DD Form 214, for the period ending 21 November 1997 is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries in item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 910529 UNTIL 950607 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. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the 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. 3. Army Regulation 635-8 (Separation Processing and Documents) provides: for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable, enter Continuous Honorable Active Service From" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). Then, enter the specific periods of reenlistment as prescribed above. 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, a UOTHC discharge was normally considered appropriate. 5. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Navy Records (BCM/NR), on 3 September 2014, 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. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. 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) AR20230000986 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1