IN THE CASE OF: BOARD DATE: 4 October 2023 DOCKET NUMBER: AR20230002676 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement * Permanent Orders awarding the Combat Infantry Badge (CIB) * Reference letter in support of post-traumatic stress disorder (PTSD) diagnosis (4) FACTS: 1. The applicant did not file within the 3-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 achieved the rank/grade of specialist (SPC)/E-4 in a little more than two years and was on track for promotion to sergeant/E-5, upon his return from Afghanistan. a. During his period of service, he received the Parachutist Badge, British Parachutist Badge, German Parachutist Badge, Global War on Terrorism Service Medal (GWOTSM), Army Service Ribbon (ASR), National Defense Service Medal (NDSM), CIB, Afghanistan Campaign Medal with bronze service star (ACM with BSS), Army Achievement Medal (AAM) (2nd Award), and Army Commendation Medal (ARCOM). b. Following his combat deployment, he began experiencing long periods of anxiety, depression, and mental distress. He did know how to grieve the loss of his fallen friends or how to deal with his mental state. He struggled with insomnia and night terrors on a daily basis. He lost interest in hobbies and became very distant from family and friends. He was always hypervigilant, avoided leaving home and large crowds, he felt very vulnerable in general. This caused him to turn to alcohol and drugs to numb the pain and thoughts of committing suicide. Going absent without leave (AWOL) was the only option he had to escape the symptoms he was experiencing. c. In 2013, his suicidal ideations consumed his daily thoughts. In desperation, he sought assistance from the Department of Veterans Affairs (VA) but was turned away due to his UOTHC discharge. This worsened the fear, guilt, and shame he had struggled with for many years, and he was at rock bottom because of his PTSD. The VA took away his last bit of hope so, in an attempt to end his suffering, he grabbed a razor blade and cut open the artery in his left arm and waited to die. He endured two surgeries, three blood transfusions, and the painful recovery of his ribs that were broken during cardiopulmonary resuscitation. d. He still struggles with PTSD as a result of his combat service and is currently in a resident treatment program where he is finally receiving the help he needs. Receiving an upgraded discharge will afford him opportunities to receive the benefits and programs that are offered through the VA. 3. The applicant enlisted into the U.S. Army Reserve (USAR) Delayed Entry/Enlistment Program (DEP) on 17 November 1999. On 30 June 2000, the applicant enlisted in the Regular Army for a period of 4 years. He was assigned to Fort Benning, GA, for completion of his initial entry training. 4. Permanent Orders 310-376, issued by Headquarters, U.S. Army Infantry Center, Fort Benning, GA on 5 November 2000 awarded the applicant the Parachutist Badge for successful completion of Airborne training, effective 17 November 2000. 5. He was advanced to SPC/E-4 on 1 January 2002. 6. Permanent Orders 091-866, issued by Headquarters, Coalition Task Force 82, Bagram Airfield, Afghanistan on 1 April 2003 awarded the applicant the CIB for being engaged in active ground combat from 21 January 2003 to 31 [sic] April 2003. 7. On 30 July 2005, changes in the applicant's duty status were reported as follows on the dates shown. It appears the year pertaining to his departure in an AWOL status and being Dropped from Rolls (DFR) were inadvertently reported as 2004 rather than the actual year of 2003: * 1 September 2004 – from Present for Duty (PDY) to AWOL * 2 November 2004 – from AWOL to Dropped from Rolls (DFR) * 28 September 2005 – from DFR to PDY following his apprehension by civilian authorities 8. A DD Form 458 (Charge Sheet) shows on 5 October 2005, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 1 September 2004, with intent to remain away permanently, until on or about 28 September 2005. 9. On 13 October 2005, 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 a statement in his own behalf. 10. The applicant's chain of command recommended approval of his request with a discharge UOTHC. 11. On 20 October 2004, 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 from SPC/E-4 to the lowest enlisted grade. 12. The applicant's Enlisted Record Brief rendered on 5 October 2005 does not show the period or duration of his total service in Afghanistan. Section VIII (Awards and Decorations) shows he was awarded or authorized the NDSM and the GWOTSM. 13. Orders and the applicant's DD Form 214 show he was discharged on 3 November 2005, in the rank/grade of private/E-1, under the provisions of Army Regulation 635- 200, Chapter 10, by reason of "In Lieu of Trial by Court-Martial" with Separation Code "KFS." He was credited with completing 3 years, 3 months, and 7 days of net active service this period. He had lost time from 1 September 2003 until 27 September 2005. He did not complete his first full term of service. He was awarded or authorized the ASR and GWOTSM. There is no indication of his specific period of service in Afghanistan 14. The applicant's record is void of and he has not provided orders showing he was awarded the ACM with BSS, AAM (2nd Award), or the ARCOM. His available personnel record is void of the specific period of time that he served overseas. 15. 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. 16. The applicant provides the following: a. Previously discussed Permanent Orders 091-866, dated 1 April 2003, which shows he was awarded the CIB. b. A letter co-rendered on 7 November 2022 by two licensed counselors from a trauma and counseling center wherein they provide a summary of the applicant's mental health treatment for both addiction and combat trauma-related PTSD during his time at their facility. c. A letter rendered on 7 November 2022 by a student intern from the same trauma and counseling center wherein she provides a description of the type of treatment the applicant receives at their facility. d. A letter rendered on 10 November 2022 by a Veteran Coordinator/Mentor at a PTSD interim housing and recovery program for combat Veterans struggling with PTSD. He states the applicant has been a resident there since 30 April 2022 and positively engaged in all of the classes and group sessions conducted. Prior to his interim residency there, the applicant was homeless. 17. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 18. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * Applicant enlisted in the RA on 30 June 2000. * Coalition Task Force 82, Bagram Airfield, Afghanistan on 1 April 2003 awarded the applicant the CIB for being engaged in active ground combat from 21 January 2003 to 31 [sic] April 2003. * On 5 October 2005, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 1 September 2004, with intent to remain away permanently, until on or about 28 September 2005. * The applicant was discharged on 3 November 2005. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, by reason of "In Lieu of Trial by Court-Martial" with a UOTHC characterization of service. c. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, his ABCMR Record of Proceedings (ROP), DD Form 214, self-authored statement, and post-service medical documentation of his PTSD. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. Applicant reports following his combat deployment, he began experiencing long periods of anxiety, depression, and mental distress. He did not know how to grieve the loss of his fallen friends or how to deal with his mental state. He struggled with insomnia and night terrors daily. He lost interest in childhood hobbies and became very distant from family and friends. He was always hypervigilant and avoided leaving his home and large crowds, since he felt vulnerable. This caused him to turn to alcohol and drugs to numb the pain and thoughts of suicide. Going absent without leave (AWOL) was the only option he had to escape the symptoms he was experiencing. In 2013, his suicidal ideations consumed his daily thoughts. In desperation, he sought assistance from the Department of Veterans Affairs (VA) but was turned away due to his UOTHC discharge. This worsened his fear, guilt, and shame. In an attempt to end his suffering, he grabbed a razor blade and cut open the artery in his left arm and waited to die. He endured two surgeries, three blood transfusions, and the painful recovery of his ribs that were broken during cardiopulmonary resuscitation. e. Limited active-duty electronic medical records were available for review. However, the applicant was seen on 02 April 2002 for a CT head scan due to loss of consciousness indicative of a possible TBI. VA electronic medical records (JLV) available for review indicate applicant is not service-connected likely due to the characterization of his discharge. However, the applicant has been repeatedly psychiatrically hospitalized and has experienced homelessness. A hospital discharge summary dated 13 August 2013 diagnosed him with PTSD, Anxiety Disorder, Alcohol Abuse, and Cocaine abuse. He was psychiatrically admitted due to depression, anxiety and two suicide attempts in the preceding 3 weeks. A second hospital discharge summary dated 19 August 2013 diagnosed him with a Mood Disorder and severe Polysubstance Disorder (ETOH, Cocaine, Opiates/Heroin, Benzos and Amphetamine). At the time, he was coping with the pending divorce from his wife and loss of custody of the couple’s children. A third hospitalization discharge summary dated 14 November 2013, diagnosed the applicant with Polysubstance dependence (cocaine, opioids, alcohol, and amphetamines) and Mood Disorder. The following stressors were also identified: homelessness, lack of family and friend support systems, unemployment, and prior suicide attempts. f. The applicant is currently in a residential treatment program at Refuge Trauma and Counseling Center, Camp Hope-PTSD Foundation of America in Houston, TX. Camp Hope provides interim housing and a recovery program for combat veterans struggling with PTSD. The applicant is receiving intensive treatment for the complications of PTSD and a co-occurring polysubstance abuse disorder. g. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is sufficient evidence that the applicant had a behavioral health condition during military service that mitigates his discharge. 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 asserts a mitigating condition. (2) Did the condition exist or experience occur during military service? Yes. The applicant is diagnosed with PTSD and his service record indicates that he served in combat. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant asserts PTSD and while there are no medical records from his time in service that diagnosis him with PTSD, he self-reports significant symptoms of PTSD and he was in combat. Medical documentation since his discharge from military service consistently document PTSD secondary to combat trauma, with symptoms clearly starting while he was in service. The applicant was discharged from military service due to AWOL. Given the nexus between PTSD and avoidance, his behavioral health condition fully mitigates the reason for his discharge. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was 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 sufficient evidence that the applicant had a behavioral health condition during military service that mitigates his discharge. Based on the findings from his medical documentation since the applicant’s discharge from military service, it consistently documents PTSD secondary to combat trauma, with symptoms clearly starting while he was in service. The determined the nexus between PTSD and avoidance, his behavioral health condition fully mitigates the reason for his discharge. Based on the preponderance of evidence, the Board found clemency is warranted and granted partial relief with an upgrade to general under honorable conditions. 2. 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 :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: 1. In addition to the administrative notes annotated by the Analyst of Record (below the signature), 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 reissuing the applicant a DD Form 214 showing his characterization of service as General Under Honorable Conditions. 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 upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. 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 1. Army Regulation 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was required to list all of a separating Soldier's awards and decorations. 2. Army Regulation 600-8-22 (Military Awards), currently in effect, states the ACM is awarded to members who have served in direct support of Operation Enduring Freedom (OEF). The area of eligibility encompasses all the land area of the country of Afghanistan and all air spaces above the land area. The period of eligibility is on or after 11 September 2001 to a future date to be determined by the Secretary of Defense or the cessation of OEF. A bronze service star is authorized for wear with this medal for participation in each credited campaign. Approved designated Afghanistan campaigns are: * Liberation of Afghanistan (11 September 2001 – 30 November 2001) * Consolidation I (1 December 2001 – 30 September 2006) * Consolidation II (1 October 2006 – 30 November 2009) * Consolidation III (1 December 2009 – 30 June 2011) * Transition I (1 July 2011 – date to be determined) 3. The Army Training Requirements and Resources System Course Catalog shows the Airborne training course is 3 weeks (136 hours) long. 4. The evidence of record confirms the applicant enlisted in the USAR DEP on 17 November 1999 and was discharged from the DEP on 29 June 2000 for the purpose of enlisting in the Regular Army on 30 June 2000. Therefore, Block 12e (Total Prior Inactive Service) of his DD Form 214 should be corrected to reflect his 7 months and 13 days of inactive service by adding the following: 0000 07 13. 5. The evidence of record confirms Permanent Orders awarded the applicant the: * Parachutist Badge for completion of Airborne training * CIB for being engaged in active ground combat in Afghanistan from 21 January 2003 to 31 [sic 30] April 2003 6. Based on the foregoing, amend the applicant's DD Form 214 for the period ending 3 November 2005 by adding the following: a. To Block 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized): * Parachutist Badge * Combat Infantryman Badge * Afghanistan Campaign Medal with bronze service star * Consolidation I b. To Block 14 (Military Education), the entry "Airborne, 3 weeks, 2000." c. To Block 18 (Remarks) SERVICE IN AFGHANISTAN (Operation Enduring Freedom) FROM 20030119 until 20040831 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 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 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. 4. 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. 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 post-traumatic stress disorder (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, 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. 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 600-8-22 provides the following guidance. a. The NDSM is awarded for honorable active service for any period between 27 July 1950 and 27 July 1954, 1 January 1961 and 14 August 1974, 2 August 1990 and 30 November 1995, and 11 September 2001 and a date to be determined. b. The AAM is awarded to members of the Armed Forces of the United States, who while serving in a noncombat area on or after 1 August 1981, distinguished themselves by meritorious service or achievement. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. c. The ARCOM may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230002676 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1