IN THE CASE OF: BOARD DATE: 4 October 2023 DOCKET NUMBER: AR20230001867 APPLICANT REQUESTS: reconsideration of his prior request for an upgrade of his under other than honorable conditions discharge to a general discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * Two DD Forms 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Personal Statement * Character Statement – Spouse * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 Docket Number AR1999033448 on 20 April 2000. 2. The applicant states he “needs” an upgrade on his discharge to be disability for his ankle and the ringing in his ears, which have been an issue since his discharge. He cannot receive benefits unless the separation is upgrade. In his personal statement he adds that he is requesting an upgrade to reflect a general discharge and reiterates he has been suffering with the medical conditions related to his ankle and left ear since his discharge. He stated before that his family had personal issues and that is why he got in trouble with the government. He is not the same irresponsible and troubled man. He is a father, a husband, a mentor to troubled youth in society, and is now required to take care of his wife due to her breast cancer. He asks the Board to please consider his upgrade to allow him to submit the “proper claim,” and further be able to provide for his wife. The applicant also marked post-traumatic stress disorder (PTSD) and other mental health issues on his DD Form 293. 3. The applicant provides as new evidence, a character statement from his spouse. a. She noted the applicant entered the Army full of ambition and determined to serve his country. The applicant expressed concerns about how physically challenging the Army was getting as time passed, but he shared with her that he was determined to adjust and keep up. He would always complain to her about his back and feet, but he continued to push himself. He graduated basic training, returned home, and was excited to share with the family about the experience he endured and overcame. She was proud of him, but then she received a call stating that his sister committed suicide. Her husband took it really hard and then he began to react “very different.” b. Her husband cried a lot, asked to be by himself, and would not say much. He did not want to go anywhere, and the depression really got ahold of him. Life took a very different turn for him, and she became worried and concerned. His physical behavior only worsened, and he continued to complain about his back pain, at times hardly able to walk or stand. He informed her that the pain started in training. She further witnessed his mental state deteriorating after his father passed away due to cancer. He looked after his father for quite some time, and she believes he felt lost after losing him. c. In 2018, he took another blow when they were notified that she had stage 3 cancer. He began to lash out in anger, but she knew he was hurt because he could likely lose her. He remained with her through chemo and radiation and during that process he received a call from his mother that his younger sister died of cancer complication while undergoing the same type of treatment she was undergoing at the time. She emphasizes that her husband has been through a lot, both physically and mentally, and could use the upgrade to get the help he desperately needs. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 3 August 1993. b. A Standard Form (SF) 88 (Report of Medical Examination) dated 5 August 1992, shows the applicant completed a medical examination for the purpose of enlistment which indicated he was generally in good health. The applicant was marked qualified for service in Block 77 (Examinee). c. The service record contains the below listed documents updating the applicant’s duty status: * DA Form 4187 (Personnel Action) – the applicant was marked absent without leave (AWOL) effective 15 July 1994 * DD Form 553 (Deserter/Absentee Wanted by the Armed Forces) – changed the applicant’s status to deserter effective 15 August 1994 * DD Form 616 (Report of Return Absentee) – the applicant was returned to military control on 24 May 1996 d. A DD Form 458 (Charge Sheet) shows on 29 May 1996, court-martial charges were preferred on the applicant for being absent without authority from 15 July 1994 to 24 May 1996 (1 year, 10 months, and 10 days). e. On 29 May 1996, the applicant was informed the separation medical examination was voluntary. The applicant elected by initialing that he did not desire a separation medical examination, signed and dated the memorandum. f. On 30 May 1996, after consulting with legal counsel he requested a discharge in lieu of trial by courts-martial under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He acknowledged: * maximum punishment * he was guilty of the charges against him or of a lesser included offense * he does not desire further rehabilitation or further military service * if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate * he would be deprived of many or all Army benefits, he may be ineligible for many or all benefits administered by the Veterans Administration, * he may be deprived of his rights and benefits as a veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life g. On 28 June 1996, consistent with the chain of command recommendations, the separation authority approved the applicant’s request for discharge in lieu of trial by courts-martial. He would be issued an Under Other Than Honorable Conditions Discharge Certificate and reduced to the lowest enlisted pay grade. h. Orders 194-25, dated 12 July 1996, discharged the applicant from active duty with an effective date of 24 July 1996. i. On 24 July 1996, he was discharged from active duty with an under other than honorable conditions characterization of service. His DD Form 214 shows he completed 1 year, 1 month, and 3 days of active service with 680 days of lost time. It also shows he was awarded or authorized: * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar * Sharpshooter Marksmanship Qualification Badge with Hand Grenade 5. On 22 March 2023, the Army Review Boards Agency notified the applicant he had 30 days to provide copies of Department of Veteran Affairs (VA) documents or other medical documentation to support his claim of mental health issues. The applicant has not provided medical documentation to date. 6. On 20 April 2000, the ABCMR rendered a decision in Docket Number AR1999033448. The Board noted the applicant failed to submit evidence that would justify correction of his military record. The Board denied the applicant’s request and concluded the factors presented did not mitigate his misconduct sufficiently to warrant an upgrade of his discharge. 7. On 29 September 1999, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 8. By regulation (AR 635-5), the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 9. By regulation (AR 635-200), an individual who has 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. An Under Other than Honorable Discharge Certificate normally is appropriate for a member who is discharged for the good of the service or in lieu of trial by court-martial. 10. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 11. 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 again applying to the ABCMR requesting an upgrade of his 24 July 1996 under other than honorable conditions discharge. He notes on his DD From 149 that PTSD and other mental health concerns are related to his request. He states: “Need upgrade on discharge to get disability. My ankle, back, and ringing of my ears has been an issue since my discharge. Can’t receive the benefits unless my separation is upgraded.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 shows he entered the regular Army on 3 August 1993 and was discharged under other than honorable conditions on 24 July 1996 under provisions provided in by chapter 10 of AR 635-200, Personnel Separations – Enlisted Personnel (26 May 1989): Discharge for the Good of the Service. The DD 214 shows 680 days of time lost under 10 USC § 972, from 15 July 1994 thru 24 May 1996. The DD 214 does not list a deployment to a hazardous duty pay area. d. A request to reenlist in the Army was denied by the ADRB on 29 September 1999 (AR1999030687) and a request for a discharge upgrade was denied the ABCMR on 20 April 2000 (AR1999033448). Rather than repeat their findings here, the board is referred to the record of proceedings for that case. Because these denials was before the institution of liberal consideration polices, this review will concentrate on evidence of a potentially mitigating mental health condition as well as new evidence submitted with this application. e. His pre-entrance Report of Medical Examination shows he was in good health. f. A Charge Sheet (DD Form 458) shows he was charged with absence without leave from 15 July 1994 thru 24 May 1996. He had been apprehended by civil authorities in,. g. On 30 May 1996, the applicant voluntarily request discharge in lieu of trial by court-marital under chapter 10 of AR 635-200. He declined the opportunity for a separation medical examination. h. The applicant’s request for discharge in lieu of courts-martial was approved by the battalion commander on 28 June 1996. i. No medical documents submitted with the application. Review of his records in JLV shows he has received some care as a non-service-connected Veteran and has no diagnosed mental health conditions. j. It is the opinion of the Agency 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. The applicant, on his DD Form 149, self asserts that he suffered from PTSD and other mental health conditions. (2) Did the condition exist or experience occur during military service? Unknown. The applicant self asserts PTSD and other mental health conditions on his DD149 but does not indicate the date of onset of these self-asserted conditions. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant has submitted no medical documentation indicating a diagnosis of PTSD and/or other mental health conditions. Review of the VA medical records indicates that the applicant has not been diagnosed with either a service connected or nonservice connected BH condition. However, as per Liberal Consideration guidance, the applicant’s self-assertion alone merits consideration by the board. 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 insufficient evidence to warrant a discharge upgrade. The Board noted the applicant’s self-assertion of PTSD and other mental health conditions on his DD149 but does not indicate the date of onset of these self- asserted conditions. 2. The Board recognizes the applicant’s life challenges with his spouse and family and his health issues. However, the Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. Therefore, relief was denied. 3. This board is not an investigative body. The Board determined despite the absence of the applicant’s medical records, they agreed the burden of proof rest on the applicant, however, he did not provide any supporting documentation and his service record has insufficient evidence to support the applicant contentions of a discharge upgrade. 4. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction be 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: 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 to amend the decision of the ABCMR set forth in Docket Number AR1999033448 on 20 April 2000. 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 NOTES: A review of the applicant’s records shows he is authorized additional awards not annotated on his DD Form 214 for the period ending 24 July 1996. As a result, amend his DD Form 214 by adding the National Defense Service Medal (NDSM). REFERENCES: 1. Section 1556 of Title 10, USC, 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. 2. Army Regulation 635-5 (Separation Documents) states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. 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 (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of this regulation states an individual who has committed an offense or offenses, the punishment for any of which includes a bad conduct discharge or dishonorable discharge, may submit a request for discharge for the good of the service. An Under Other than Honorable Discharge Certificate normally is appropriate for a member who is discharged for the good of the service. 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 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, on 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. 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 (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. 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 based on equity, injustice, or clemency grounds, BCM/NRs 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. 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) AR20230001867 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1