. IN THE CASE OF: BOARD DATE: 28 September 2023 DOCKET NUMBER: AR20230002801 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) characterization of service and a different narrative reason for separation. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * eight pages of Service Treatment Records, dated 13 January 1998 to 19 March 1998 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 7 June 2000 * Department of Veterans Affairs (VA), Rating Decision, dated 21 June 2021 * Affidavit, dated 27 June 2023 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, in effect, his post-traumatic stress disorder (PTSD) started after his car accident. PTSD was the cause of the events which led to his discharge. 3. The applicant enlisted in the Regular Army on 1 November 1990 and subsequently reenlisted on 29 July 1994 and 30 May 1997. The highest grade he held was sergeant/E-5. 4. Two DA Forms 4187 (Personnel Action) show the following changes in his duty status: * Present for duty (PDY) to Absent without Leave (AWOL) – 8 November 1997 * AWOL to PDY - 12 November 1997 5. A DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status), dated 17 March 1998, with associated documents, show the applicant was in a motor vehicle accident in which he sustained personal injury on 12 January 1998. He failed to negotiate a turn, oversteered, and lost control of his vehicle. He was taken to Wayne County Hospital and treated for a non-displaced fracture of the left clavicle, multiple lacerations to his face, ear, head, and forearm, and suture of lacerations requiring 57 stitches. Alcohol was not a factor in the accident. The accident was determined to be in the line of duty. 6. Two DA Forms 4187 show the following changes in his duty status: * PDY to AWOL – 6 August 1998 * AWOL to Dropped from the Rolls – 5 September 1998 7. A DD Form 458 (Charge Sheet), dated 5 September 1998, shows he was charged with AWOL from on or about 6 August 1998, and did so remain AWOL. 8. He was apprehended by civilian authorities and returned to military control on 23 February 1999. 9. A DD Form 458 shows court-martial charges were preferred against him on 3 March 1999 for being AWOL from on or about 6 August 1999 to on or about 23 February 1999. 10. He consulted with legal counsel on or about 3 March 1999. 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 provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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 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. 11. His immediate commander recommended approval of the request for discharge in lieu of trial by court-martial. He further recommended a service characterization of UOTHC. 12. The applicant’s service record does not contain a copy of the separation authority’s approval. However, the applicant’s DD Form 214 shows he was discharged on 7 June 2000, under the provisions of Army Regulation 635-200, Chapter 10, with Separation Code “KFS” and narrative reason for separation of: in lieu of trial by court-martial. His service was characterized as UOTHC. He was credited with 9 years and 12 days of net active service with lost time from 8 November 1997 to 11 November 1997 and 6 August 1998 to 22 February 1999. His awards include the following: * Army Achievement Medal (4th award) * Army Good Conduct Medal * National Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon (2nd award) 13. The applicant provides the following: a. Eight pages of Service Treatment Records, dated 13 January 1998 to 19 March 1998, show the medical treatment he received following his motor vehicle accident on 12 January 1998. b. A VA Rating Decision, dated 21 June 2021, shows the applicant was diagnosed with PTSD, related to an in-service event or injury. However, his 29 July 1997 to 7 June 2000 period of service was dishonorable for VA purposes. His claim for service connection for PTSD was denied by the VA. c. An affidavit, dated 27 June 2023, shows the applicant authorized a Veterans Service Officer permission to discuss his request for a discharge upgrade on his behalf. 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 under other than honorable conditions 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, and a different narrative reason for separation, presumably more favorable. The applicant asserts PTSD as a mitigating factor in his misconduct and 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 Regular Army 1 November 1990. He reenlisted on 29 July 1994 and 30 May 1997. * DA Forms 4187 show the following changes in his duty status: Present for duty (PDY) to Absent without Leave (AWOL) – 8 November 1997 and AWOL to PDY - 12 November 1997. * A DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status), dated 17 March 1998, with associated documents, show the applicant was in a motor vehicle accident in which he sustained personal injury on 12 January 1998. He was significantly injured. The accident was determined to be in the line of duty. * A DD Form 458 (Charge Sheet), dated 5 September 1998, shows he was charged with AWOL from on or about 6 August 1998, and did so remain AWOL. He was apprehended by civilian authorities and returned to military control on 23 February 1999. * Court-martial charges were preferred against him on 3 March 1999, for being AWOL from on or about 6 August 1999 to on or about 23 February 1999. * On 3 March 1999 the applicant voluntarily requested to discharge under AR 635- 200, Chapter 10 – in lieu of trial by court-martial. His request was approved. * On 7 June 2000, the applicant was discharged with an UOTHC characterization of service. 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 293, ABCMR Record of Proceedings (ROP), service treatment records (STRs), VA Rating Decision letter, affidavit, 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). Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant reported he had a car accident while in the service that led to PTSD. He asserts that this event, and PTSD, led to the misconduct and his discharge. The applicant’s time in service predates use of electronic health records (EHR) by the Army, hence no EHRs are available for review. The applicant did provide STR’s for review. He was in a motor vehicle accident (MVA) in which he sustained personal injury on 12 January 1998. He was treated for a non-displaced fracture of the left clavicle, multiple lacerations to his face, ear, head, and forearm, and suture of lacerations requiring 57 stitches. The accident was determined to be in the line of duty. There is no indication the applicant received mental health treatment nor a diagnosis while he was in the service. No other records were provided to substantiate his claim. e. Per the applicant’s VA EHR, he is not service connected with compensation and given the characterization of his discharge, he would not typically be eligible for most VA benefits. However, the applicant provided a copy of his Department of VA VBA administrative decision letter (21 June 2021) which shows he was denied PTSD during his honorable time in service but was service connected, without compensation, for PTSD secondary to the car accident during his dishonorable period of service. Please review findings for full account, but in short, “You have been diagnosed with a disability. The VAMC treatment records and a PTSD exam diagnosed you with chronic PTSD. A nexus, or link, has been established between your claimed issue and an in-service event or injury.” His records indicate he has been engaged with the VA for mental health treatment since 2020, primarily engaged in outpatient care, telehealth, and case management/mental health treatment coordination (MHTC). He has been diagnosed with PTSD, major depressive disorder, adjustment disorder, anxiety disorder, generalized anxiety disorder, and problems in relationship with spouse or partner. Through review of JLV, this applicant did have “Community Health Summaries and Documents” available, though there was no record of a mental health diagnoses, nor mental health encounters. No other medical records were provided. f. Based on the available information, it is the opinion of the ARBA BH Advisor that there is sufficient evidence to support the applicant had a condition or experience at the time of service that mitigated 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 PTSD as a mitigating factor in his discharge. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts a mitigating condition or experience occurred during his time in service. The VA has found the nexus of his PTSD to be during his service (the MVA). The MVA is well documented in his service record. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant asserts PTSD mitigated his discharge. There are no mental health treatment records from his time in service, however there are sufficient records that document his traumatic experience (MVA), which was found to be in the line of duty. In addition, he has since been diagnosed and service connected (without compensation) for PTSD. Going AWOL is an avoidance behavior, consistent with trauma exposure (the MVA). Avoidance behaviors are also part of the natural history and sequalae of numerous mental health conditions, to include PTSD. Hence, there is a nexus between his symptoms/experience and the AWOLs that led to his discharge. The applicant’s basis for separation is mitigated and accordingly, an upgrade is recommended. BOARD DISCUSSION: 1. 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 PTSD claim and the review and conclusions of the ARBA BH Advisor. 2. The Board concurred with the conclusion of the medical advising official regarding his misconduct being mitigated by PTSD. Based on a preponderance of evidence, the Board determined the applicant’s character of service character of service should be changed to under honorable conditions (general). 3. Regarding the reason for separation, the Board found his discharge in lieu of trail by court-martial was fully supported by the evidence. The Board determined the reason for his discharge is not in error or unjust. ? 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. 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 his DD Form 214 to show his character of service as under honorable conditions (general). 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 changing the reason for separation. 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, USC, 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, 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. 3. 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. 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. 4. Army Regulation 635-5-1 (Separation Program Designator 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" and the narrative reason “in lieu of court-martial” are appropriate to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 10. 5. 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 post-traumatic stress disorder; 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. 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. 6. 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) AR20230002801 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1