IN THE CASE OF: BOARD DATE: 28 July 2023 DOCKET NUMBER: AR20230001934 APPLICANT REQUESTS: reconsideration of his request for upgrade of his under other than honorable conditions (UOTHC) discharge to an under honorable conditions (General) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement 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 AR20180008453 on 9 January 2020. 2. The applicant states, in effect, he served on active duty during the war in Afghanistan and his unit was deployed. He was the only Soldier promoted during his Basic Combat Training class and was about to be promoted to the rank/pay grade of specialist/E-4 before he was arrested on illegal drug-related charges and was separated from the service UOTHC. He admits he was young and dumb back then and regrets his misconduct. He is homeless, has no health insurance, his vision and hearing are failing, and he suffers from post-traumatic stress disorder (PTSD). He desires an upgraded discharge so he can be eligible for health care benefits. He is a Veteran who served his country, he just made a stupid mistake. 3. On 1 June 2000, the applicant enlisted in the Regular Army for a period of 4 years. Upon completion of initial entry training, he was assigned to a unit at Fort Hood, TX. He was promoted to the rank/grade of private first class/E-3 on 1 June 2001. 4. The applicant's unit reported changes in his duty status as follows: * 5 April 2002 - from Present for Duty (PDY) to Absent Without Leave (AWOL) * 6 May 2002 - from AWOL to Dropped from Rolls (DFR) * 7 May 2002 - from AWOL/DFR to PDY * 23 May 2002 - from PDY to AWOL * 23 June 2002 - from AWOL to DFR as a deserter * 13 February 2003 - from DFR to Confined by Civil Authorities (CCA) following his arrest in El Paso, TX for wrongful possession of marijuana * 19 March 2003 - from CCA to Confined by Military Authorities as a result of being ordered to pre-trial confinement 5. A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against the applicant on 26 March 2003 for violation of the following Articles of the Uniform Code of Military Justice (UCMJ): * Charge I - Article 85, Specification: on or about 23 May 2002, without authority and with intent to remain away permanently, absenting himself from his unit and remaining so absent in desertion until he was apprehended on or about 25 January 2003 * Charge II - Article 86, * Specification 1: on or about 5 April 2002, without authority, absenting himself from his unit and remaining so absent until he was apprehended on or about 7 May 2002 * Specification 2: on divers occasions between approximately 13 May 2002 and 22 May 2002, without authority, failing to go at the time prescribed to his appointed place of duty * Charge III - Article 134, Specification: breaking restriction on or about 19 May 2002 6. The applicant's company, battalion, and brigade level commanders recommended his case be referred to a Special Court-Martial empowered to adjudge a Bad Conduct Discharge. 7. On 11 April 2003, 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. He consulted with legal counsel and was advised of the basis for the trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a UOTHC discharge; and the procedures and rights that were available to him. He elected not to submit statements in his own behalf. 8. On 1 May 2003, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial, with his service characterized as UOTHC. He further directed the applicant be reduced to the lowest enlisted grade. 9. Orders and the applicant's DD Form 214 confirm he was discharged on 16 May 2003, in the grade of E-1, under the provisions of Army Regulation 635-200, Chapter 10, by reason of "In Lieu of Trial by Court-Martial" with Separation Program Designator (SPD) code "KFS." He was credited with completing 2 years and 15 days of net active service this period. He did not complete his first full term of service and four periods of lost time from: * 5 April 2002 until 5 May 2002 * 23 May 2002 until 22 June 2002 * 23 June 2002 until 12 February 2003 * 13 February 2003 until 18 March 2003 10. The applicant petitioned the ABCMR for relief on 11 December 2020, he was informed the ABCMR had carefully considered his request for upgrade of his discharge, under procedures established by the Secretary of the Army and denied his request. 11. On 31 March 2023, a member of the ABCMR support staff requested the applicant provide medical documents that support his claim of PTSD. To date, the applicant has not provided a response. 12. The available record is void of evidence and the applicant has not provided evidence showing he deployed to an overseas combat zone or that he was diagnosed or treated for PTSD during his period of service. 13. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in- lieu of trial by court-martial. In doing so, he would have waived his opportunity to appear before a court-martial and risk a felony conviction. A characterization of UOTHC is authorized and normally considered appropriate. 14. The Board can consider the applicant s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 15. MEDICAL REVIEW: a. The applicant requests reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge to an under honorable conditions (General) discharge. He appears to contend his misconduct was related to PTSD. 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 into the Regular Army on 1 June 2000; 2) As detailed in the ROP the applicant was AWOL on multiple occasions between 5 April 2002 and 19 March 2003; 3) As detailed in the ROP, A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against the applicant on 26 March 2003 for violation of Articles 85, 86, and 134 of the Uniform Code of Military Justice; 4) On 11 April 2003, the applicant voluntarily requested discharge under the provisions of AR 635-200; 5) On 1 May 2003, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial, with his service characterized as UOTHC; 6) He was discharged on 16 May 2003, in the grade of E-1, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. c. The VA electronic medical record (JLV), ROP, casefiles, and the applicant s personnel files were reviewed. The military electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant s time in service. No military BH records were provided for review. A review of JLV showed the applicant does not have a service-connected disability. The applicant s limited BH-related engagement with the VA consisted of a walk-in encounter at the Texas Valley, TX, VA on 21 October 2019 whereby he requested a mental health assessment as part of his involvement with CPS after he was incarcerated for assaulting his girlfriend. The applicant reported he blacked-out during the incident and didn t have a memory of it. He denied any concerns with mood but noted himself quick to anger. The assessment was not completed due to the applicant needing to leave to address family issues. No diagnosis was rendered. He was rescheduled on two occasions but failed to attend the appointments. Encounter note dated 24 June 2020 showed an individual from the VA Homeless Call Center attempted to contact the veteran for 3 consecutive days, after receiving a referral. They were unable to contact the applicant and closed the consult. The writer noted the applicant was ineligible for housing program. JLV was void of any additional BH-related records pertaining to the applicant. No hardcopy civilian BH records were provided for review. d. The applicant requests reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge to an under honorable conditions (General) discharge. He appears to contend his misconduct was related to PTSD. A review of the records was void of any BH diagnosis or treatment history during service. Post-service records were void of a BH diagnosis and showed the applicant attended one BH session at the VA, during which time a partial psychological intake assessment was completed. The assessment was reported not completed due to the applicant having to leave to address a family matter: No diagnosis was rendered. A follow-up was scheduled to complete the assessment, however the applicant failed to make the appointment. The applicant provided no documentation to support his contention of PTSD. In absence of documentation supporting a diagnosis of PTSD there is no evidence to support the applicant contention that his misconduct was related to or mitigated by PTSD, and no evidence to support an upgrade of his discharge characterization. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence in the records that the applicant had a condition or experience during his time in service that mitigated his misconduct. However, the applicant appears to contend his misconduct was related to PTSD, and per Liberal Consideration guidance, his contention is sufficient to warrant the Board s consideration. (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant appears to contend his misconduct was related to PTSD. (2) Did the condition exist, or experience occur during military service? Yes. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant requests reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge to an under honorable conditions (General) discharge. He appears to contend his misconduct was related to PTSD. A review of the records was void of any BH diagnosis or treatment history during service. Post-service records were void of a BH diagnosis and showed the applicant attended one BH session at the VA, during which time a partial psychological intake assessment was completed. The assessment was reported not completed due to the applicant having to leave to address a family matter: No diagnosis was rendered. A follow-up was scheduled to complete the assessment, however the applicant failed to make the appointment. The applicant provided no documentation to support his contention of PTSD. In the absence of documentation supporting a diagnosis of PTSD there is no evidence to support the applicant contention that his misconduct was related to or mitigated by PTSD, and no evidence to support an upgrade of his discharge characterization. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered the applicant's request, supporting documents and evidence in the records. The Board considered the frequency and nature of the misconduct, the reason for separation and published DoD guidance for consideration of discharge upgrade requests. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference to weigh in support of a clemency determination. Based on a preponderance of evidence available for review, the Board determined that the character of service the applicant received upon separation was not in error or unjust. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :xx :xx :xx 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 to amend the decision of the ABCMR set forth in Docket Number AR20180008453 on 9 January 2020. 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 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. 2. 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. 3. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an UOTHC discharge. b. 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. c. 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. d. When a Soldier was to be discharged UOTHC, the separation authority would direct an immediate reduction to the lowest enlisted grade. 4. Army Regulation 635-5-1 (SPD 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 "KFS" is an appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 10, by reason of In Lieu of Trial by Court-Martial. 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) AR20230001934 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1