IN THE CASE OF: BOARD DATE: 6 September 2023 DOCKET NUMBER: AR20230002381 APPLICANT REQUESTS: in effect, an upgrade of his under other than honorable conditions (UOTHC) characterization of service to honorable or a medical discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) with a self-authored statement * Behavioral Health Progress Note, dated 17 November 2022 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, in effect: a. His father and birth father both served in the Army during World War II. He joined the Army to honor the family legacy and to seek reform from drug addiction. He was addicted to heroin, cocaine, and alcohol. He was unable to remain sober while in the service. Both times he left Fort Sill, he left to get high. b. He used drugs and alcohol to cope with his mental health issues. He has post- traumatic stress disorder (PTSD) from significant events in his childhood. Fellow Veterans and employees from the Rochester Police Department, who served with his father, recommended he join the Army to help get on the straight and narrow. c. After his son was born in 2006, he knew he needed to get sober. He struggled for one year. Now he assists others in achieving sobriety. He goes to the Veterans Outreach Center once a month to assist homeless Veterans. He also sponsors Veterans in his 12-step program. Since the birth of his second son in 2020, he has become more involved with his mental health. His doctors believe he is bipolar. d. His father and mother were a service to the Veteran community until they died. In sobriety, he has also been of service. He hopes to instill the same sense of service in his sons. 3. Prior to his enlistment, the applicant completed the Standard Form (SF) 86 (Questionnaire for National Security) and DD Form 1966 (Record of Military Processing – Armed Forces of the United States). On both forms, the applicant noted he had tried marijuana with friends on two occasions between January 1992 and February 1992. 4. The applicant enlisted in the Army National Guard of the United States on 13 January 2000. He was ordered to initial active duty for training (IADT) on 16 March 2000 at Fort Sill, OK, for the completion of his initial entry training. 5. Two DA Forms 4187 (Personnel Action) show the following changes in his duty status: * Present for Duty to Absent Without Leave (AWOL) on 8 April 2000 * AWOL to Dropped from the Rolls on 8 May 2000 6. Orders 00-133-005, issued by Headquarters, U.S. Army Reserve Command, Fort McPherson, GA, dated 12 May 2000, show the applicant was deleted from the U.S. Army Reserve strength and assigned to the 95th Adjutant General Reception Battalion, Fort Sill, OK, effective 8 May 2000. 7. A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against the applicant on 8 May 2001, for being AWOL from on or about 8 April 2000 through on or about 2 May 2001. 8. A DD Form 616 (Report of Return of Absentee), dated 30 April 2001, shows the applicant was apprehended by civil authorities and returned to military control on 28 April 2001. 9. The applicant consulted with legal counsel on or about 8 May 2001. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a UOTHC discharge, and the procedures and rights that were available to him. b. After receiving legal counsel, he voluntarily requested discharge, in lieu of trial by court-martial, under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10. 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 acknowledged making this request free of coercion. He further acknowledged understanding if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veteran's Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his behalf. He did not provide a statement. 10. His commander recommended approval of his request for discharge in lieu of trial by court-martial, with a service characterization of UOTHC, on 24 January 2002. 11. The separation authority approved the recommended discharge on 31 January 2002 and directed the applicant be issued an UOTHC characterization of service. 12. Accordingly, the applicant was discharged on 11 February 2002, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms his characterization of service was UOTHC. He was credited with 9 months and 8 days of net active service with lost time from 19 March 2000 to 1 May 2001. 13. The applicant provides a behavioral health progress note, dated 17 November 2022, which lists the following diagnoses: * mild episode of recurrent major depressive disorder * attention deficit hyperactivity disorder (ADHD), predominantly inattentive type * history of PTSD 14. Discharges under the provisions of Army Regulation 635-200, Chapter 10, are voluntary requests for discharge for the good of the service, in lieu of a trial by court- martial. An UOTHC character of service is normally considered appropriate. 15. The Board should consider the applicant's argument and/or evidence in accordance with the published equity, injustice, or clemency determination guidance. 16. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under other than honorable conditions (UOTHC) characterization of service to honorable or a medical discharge. The applicant asserts that PTSD and other mental health mitigate his misconduct. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a brief summary of information pertinent to this advisory: * The applicant enlisted in the Army National Guard on 13 January 2000. He was ordered to initial active duty for training (IADT) on 16 March 2000 at Fort Sill, OK, for the completion of his initial entry training. * Court-martial charges were preferred against the applicant on 8 May 2001, for being AWOL from on or about 8 April 2000 through on or about 2 May 2001. A Report of Return of Absentee, dated 30 April 2001, shows the applicant was apprehended by civil authorities and returned to military control on 28 April 2001. * On 8 May 2001, the applicant voluntarily requested discharge under AR 635-200, chapter 10, for the good of the service – in lieu of court-martial. His request was approved. * Applicant was discharged on 11 February 2002 with an under other than honorable conditions discharge. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149 with self-authored statement, ABCMR Record of Proceedings (ROP), a behavioral health progress note from 17 November 2022, his 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), though minimal data was available. Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant, in short, asserts that he had mental health concerns, a significant history of trauma, and significant addiction that all predated his time in the service. He is asserting that these factors mitigate his misconduct and discharge. Please see his self- authored statement for a full account. There are no electronic health records (EHR) from his time in service to review, which is to be expected given the timeframe he served. He did not provide any medical documentation to support his assertion of mental health concerns during his period of service. And his service records do not capture any mental health or substance use concerns, only that he was AWOL and apprehended. e. Since his discharge, the applicant has engaged in mental health care. The applicant provided a single mental health progress note from 17 November 2022 that lists the applicant as diagnosed with a mild episode of recurrent major depressive disorder, ADHD (primarily inattentive type) and history of PTSD. This note does not state when his diagnoses started or what may have been contributing factors. Hence, there is no indication that these diagnoses were present during his time in service or exacerbated in some way by his service. Per the applicant’s VA EHR, he is not service connected. He has not been engaged in any mental health care through the VA and he holds no mental health diagnoses with the VA. However, given the characterization of his discharge, he would not typically be eligible for most VA benefits. No other medical records were provided. f. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence, beyond self-report, to support the applicant had a condition or experience at the time of service that mitigated his discharge. Per self-report, the applicant had mental health and substance abuse concerns that predated his service, however there is insufficient evidence that he had any experiences in his brief period of active service prior to going AWOL that would have aggravated his asserted pre-existing conditions. However, he contends mental health and PTSD are mitigating factors, and 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 he had mitigating conditions (PTSD, “other mental health”). (2) Did the condition exist, or experience occur during military service? Yes. The applicant does assert a mitigating condition was present during his time in service, however he also acknowledges that his conditions were all pre-existing to his time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant asserts mitigation due to PTSD and other mental health. There is no evidence, beyond self-report, that the applicant was experiencing a mitigating condition on active service. Applicant provided a medical note from 2022, approximately 20 years after his discharge, which listed several diagnoses that could be mitigating if they were in any way service connected. However, there was no indication from this medical record that they were. Also, per the applicant’s own account, his potentially mitigating conditions all pre-date his service. Per the Hagel Memo (2014), liberal consideration does not apply to pre-existing conditions unless there is evidence of aggravation during time in service. There was insufficient evidence that any aggravation occurred during his time in service. Of note, the applicant did go AWOL, which can be a natural sequalae to some mental health conditions, but this is not sufficient to establish a history of a condition during active service. However, per Liberal Consideration guidance, his contention is sufficient for the board’s consideration. 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, beyond self-report, to support the applicant had a condition or experience at the time of service that mitigated his discharge. Although the applicant did not provide any character letters of support, the Board noted the applicant’s post service achievements within the community assisting homeless veterans and getting his life back on track through the veteran programs. 2. However, the Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. Evidence show the applicant was AWOL for 14 months after being on active duty for only four days. 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 Furthermore, the Board agreed per self-report, the applicant had mental health and substance abuse concerns that predated his service, however there is insufficient evidence that he had any experiences in his brief period of active service prior to going AWOL that would have aggravated his asserted pre-existing conditions.. Therefore, relief was denied 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 3 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 3-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 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. 3. Title 10, U.S. Code, Section 1203 provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent (%). 4. Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. a. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. b. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 5. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Once a determination of physical unfitness is made, the physical evaluation board (PEB) rates all disabilities using the Veterans Affairs Schedule for Rating Disabilities (VASRD). a. Chapter 2, provides physical standards for enlistment, appointment, and induction with the purpose to ensure members medically qualified are medically capable of completing required to training, adapt to a military environment without geographical limitations, perform duties without aggravation of existing physical defects or medical conditions. b. The standards in Chapter 2 are applicable to individuals who enlist in the Regular Army - for medical conditions or physical defects pre-dating original enlistment, standards are applicable for enlistee's first 6 months of active duty. It states that enlisted Soldiers identified within the first 6 months of active duty with a condition that existed prior to service that does not meet the physical standards may be separated following an evaluation by an Entrance Physical Standards Board, under the provisions of Army Regulation 635-200, Chapter 5; for Reserve Component and ARNG/ARNGUS members, these standards are applicant during the enlistee's first period of active duty for training (ADT). 6. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System (DES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It states, in part: a. Only the unfitting conditions or defects and those that contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. The mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability. b. The PEB-appointed counsel advises the Soldier of the Informal PEB (IPEB) findings and recommendations and ensures the Soldier knows and understands his or her rights. The Soldier records his or her election to the PEB on the DA Form 199 and has 10 calendar days from the date of receiving the PEB determination to make the election, submit a rebuttal, or request an extension. 7. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. 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. c. Paragraph 3-7b provides that 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. 8. 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 Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) 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. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or 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. 9. 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) AR20230002381 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1