IN THE CASE OF: BOARD DATE: 18 October 2023 DOCKET NUMBER: AR20230002830 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) characterization of service and an appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) with self-authored statement * excerpt, Title 38, Code of Federal Regulation (CFR), Section 4.129, undated 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 mental health condition was undiagnosed, and he was unmedicated from 2013 to 2016. He was not allowed a mental health evaluation for his defense in capital murder charges. The court wanted to use him as an example. He was diagnosed with post-traumatic stress disorder (PTSD) in 2022. The Army Discharge Review Board (ADRB) used old medical records, which diagnosed him with adjustment disorder, when they previously reviewed his case. He was absent without leave (AWOL) for three days. It takes thirty days to be determined AWOL. 3. The applicant enlisted in the Regular Army on 11 January 2008 for a 3-year period. 4. He was deployed to Kuwait, in support of Operation Enduring Freedom, from 4 November 2011 to 29 October 2012. He reenlisted for a 3-year period on 27 August 2012, in the grade of E-4. 5. A DA Form 4187 (Personnel Action) shows the applicant’s duty status changed from Present for Duty to AWOL on 9 September 2013. 6. A memorandum for record from the Commander, 149th Transportation Company (Seaport Operations Company), Fort Eustis, VA, dated 11 September 2013, requested an exception to policy for immediate assistance from the AWOL Apprehension Team in issuing a warrant for the applicant’s arrest for the safety of all parties involved. 7. A DA Form 4187 shows the applicant’s duty status changed from AWOL to Dropped from the Rolls (DFR) on 12 September 2013. Section IV (Remarks) stated he was a one day DFR due to being categorized as high risk. 8. Military Police Report (MPR) Number 00568-2013-MPC222-1, dated 13 September 2013, shows the applicant was apprehended by civilian authorities for unrelated criminal charges. A military detainer was placed on him, and he would be returned to military control upon the completion of his civil confinement. 9. Court-martial charges were preferred against the applicant on 12 September 2013 for violations of the Uniform Code of Military Justice. His DD Form 458 (Charge Sheet) shows he was charged with being AWOL, with the intent to remain so permanently, from on or about 11 September 2013 until on or about 12 September 2013. 10. The commander was formally notified by the Chief, Drug Demand Reduction Program, Army Substance Abuse Program, that a urine sample provided by the applicant, on or about 6 September 2013, tested positive for tetrahydrocannabinol (THC). 11. MPR Number 00598-2013-MPC222, dated 20 September 2013, shows the applicant was apprehended by civilian authorities for larceny of a private motor vehicle, license plates, and damage to a patrol vehicle on 19 September 2013. 12. The applicant was formally counseled on four occasions between 20 September 2013 and 30 September 2013. Areas of emphasis covered in the counseling include, but are not limited to: * arrest for grand larceny, petty larceny, and vandalism * possession of SPICE and drug paraphernalia * AWOL from 11 September to 19 September 2013 * positive urinalysis for (THC) 13. A Medical History and Physical Examination from the Virginia Peninsula Regional Jail, dated 30 September 2013, shows the applicant reported issues with PTSD, depression, anxiety, panic attacks, memory loss, nightmares, and sleep deprivation. 14. A DA Form 268 (Report to Suspend Favorable Personnel Actions [FLAG]) shows the applicant’s commander initiated a FLAG on 4 November 2013, by reason of field initiated involuntary separation/discharge. 15. The applicant underwent a mental status evaluation on 6 November 2013. The examining provider noted the diagnosis of adjustment disorder, determined the applicant met medical retention requirements, and deemed him psychiatrically cleared to participate in administrative proceedings. 16. The applicant's immediate commander notified the applicant on 6 November 2013, of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14- 12c (2), by reason of misconduct – abuse of illegal drugs. As the specific reason, the commander cited the applicant’s positive urinalysis for THC and his period of AWOL on 10 September 2013 until his apprehension by civilian authorities. The applicant acknowledged receipt of this notification on the same date. 17. On 7 November 2013, the applicant consulted with counsel and was advised of the basis for the contemplated actions to separate him and its effects; of the rights available to him; and the effect of any action taken by him to waive his rights. He elected not to submit a statement in his own behalf. 18. The applicant's immediate commander formally recommended his separation under the provisions of Army Regulation 635-200, paragraph 14-12c (2), prior to the expiration of his term of service. The applicant’s intermediate commanders reviewed and concurred with the recommendation, further recommending a service characterization of UOTHC. 19. The separation authority approved the recommended separation action on 5 May 2015 and directed a UOTHC characterization of service. 20. The applicant was discharged on 29 May 2015, under the provisions of Army Regulation 635-200, paragraph 14-12c (2), by reason of misconduct (drug abuse). His DD Form 214 (Certificate of Release or Discharge from Active Duty) and corresponding DD Form 215 (Correction to DD Form 214) shows his character of service was UOTHC, with separation code JKK and reentry code RE-4. He was credited with 5 years, 8 months, and 1 day of net active service, with lost time from 9 September 2013 to 26 May 2015. He was awarded or authorized the following: * Army Commendation Medal * Army Achievement Medal (3rd award) * Army Good Conduct Medal * National Defense Service Medal * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Noncommissioned Officer Professional Development Ribbon * Overseas Service Ribbon with Numeral 2 * Korea Defense Service Medal 21. The ADRB reviewed the applicant’s request for discharge upgrade on 18 March 2020 and 31 March 2022. On both occasions, the Board determined the applicant was properly and equitably discharged. The Board denied his request and subsequent appeal. 22. The applicant provides a self-authored statement wherein he suggests his deployment order and award recommendation are verification of his deployment. He also provides an excerpt from Title 38, CFR, Section 4.129, which provides an explanation of diagnostic features and mental disorders due to traumatic stress. 23. Regulatory guidance provides when an individual is discharged under the provisions of Army Regulation 635-200, Chapter 14, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. Characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate. 24. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 25. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. The applicant asserts PTSD mitigates his 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 11 January 2008. * The applicant was formally counseled on four occasions between 20 September 2013 and 30 September 2013. Areas of emphasis covered in the counseling include, but are not limited to: * arrest for grand larceny, petty larceny, and vandalism * possession of SPICE and drug paraphernalia * AWOL from 11 September to 19 September 2013 * positive urinalysis for (THC) * Court-martial charges were preferred against the applicant on 12 September 2013 for violations of the Uniform Code of Military Justice. His DD Form 458 (Charge Sheet) shows he was charged with being AWOL, with the intent to remain so permanently, from on or about 11 September 2013 until on or about 12 September 2013 * MPR Number 00598-2013-MPC222, dated 20 September 2013, shows the applicant was apprehended by civilian authorities for larceny of a private motor vehicle, license plates, and damage to a patrol vehicle on 19 September 2013. * The applicant was discharged on 29 May 2015, under the provisions of Army Regulation 635-200, paragraph 14-12c (2), by reason of misconduct (drug abuse). His DD Form 214 (Certificate of Release or Discharge from Active Duty) and corresponding DD Form 215 (Correction to DD Form 214) shows his character of service was UOTHC, with separation code JKK and reentry code RE-4. 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), and documents from his service record and separation packet. 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 states his PTSD was undiagnosed, and he was unmedicated from 2013 to 2016. In addition, he was not allowed a mental health evaluation for his defense related to capital murder charges. However, he was diagnosed with post-traumatic stress disorder (PTSD) in 2022. He indicates the Army Discharge Review Board (ADRB) used old medical records, which diagnosed him with an Adjustment Disorder, when they previously reviewed his case. In addition, he argues he was absent without leave (AWOL) for only three days, and it takes thirty days to be determined AWOL. e. Applicant’s active-duty electronic medical record indicates the applicant was diagnosed in-service with an Adjustment Disorder and Depressive Disorder. The applicant did not seek behavioral health services while in-service and a post deployment assessment dated 05 November 2012, indicates he denied needing any behavioral health services. He was followed by Family Advocacy due to a family maltreatment allegation with the referral incident occurring on 27 May 2013. A Medical History and Physical Examination from the Virginia Peninsula Regional Jail, dated 30 September 2013, shows the applicant reported issues with PTSD, depression, anxiety, panic attacks, memory loss, nightmares, and sleep deprivation. The applicant underwent a Mental Status Evaluation on 6 November 2013. The examining provider noted the diagnosis of Adjustment Disorder, determined the applicant met medical retention requirements, and deemed him psychiatrically cleared to participate in administrative proceedings. f. Applicant’s VA electronic medical records available for review indicate that he is 50% service-connected for PTSD. The record evidences a C and P examination dated 21 April 2022. The assessment states that the applicant is incarcerated for a murder for hire, having murdered the wife of a friend who would not grant a divorce. The applicant’s wife was an accomplice to the murder and is also incarcerated. The examination diagnosed the applicant with PTSD, related to his deployment to Kuwait. The applicant is receiving behavioral health services while in prison. Per the C and P examination, the applicant has been diagnosed with PTSD by the medical service staff at the correctional institution, and has been treated with antidepressant, anti-anxiety, and medication for nightmares by the prison psychiatrist. g. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is evidence that the applicant had a behavioral health condition during military service that would partially mitigate 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 BH condition. (2) Did the condition exist or experience occur during military service? Yes. The applicant is 50% service-connected for PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. Given the nexus between substance use and PTSD, as a coping mechanism to self-medicate his symptoms, the applicant’s possession of SPICE and drug paraphernalia and his positive urinalysis are mitigated. However, his arrest for grand larceny, petty larceny, and vandalism and AWOL from 11 September to 19 September 2013 are not mitigated. PTSD would typically mitigate AWOL, given the nexus between PTSD and avoidance. However, the record indicates that the applicant’s AWOL was in an effort to evade apprehension by police who were seeking to question him related to his possible involvement in a murder. His behavior was intentional and willful, in an effort to avoid the consequences of a crime, not has a symptom of a behavioral health condition. In the process of fleeing from the police, he stole a vehicle and when he was stopped for driving a stolen vehicle, he assaulted a police officer and damaged a police vehicle. His arrest for grand larceny, petty larceny, and vandalism are not mitigated since this behavior was also intentional and willful, as a mechanism to avoid apprehension not as a result of a behavioral health condition. 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 considered the advising official findings that there is evidence that the applicant had a behavioral health condition during military service that would partially mitigate his discharge. However, the Board found the serious misconduct of the applicant’s arrest for grand larceny, petty larceny, and vandalism and AWOL from 11 September to 19 September 2013 were not mitigating factors under liberal consideration. 2. The Board determined based on the preponderance of evidence the applicant’s AWOL was more likely than not to evade apprehension by police who were seeking to question him related to his possible involvement in an egregious crime. Evidence in the record show the applicant’s behavior was intentional and willful, in an effort to avoid the consequences of a crime, not has a symptom of a behavioral health condition. The applicant provided no post service achievements or character letters of support attesting to his character that might have mitigated this discharge characterization. However, during deliberation, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately show the applicant’s period of honorable service by granting a partial upgrade. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. ? 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 amending the applicant’s DD Form 214 for the period ending 29 May 2015 adding the following entry in item 18 (Remarks): “CONTINUOUS HONORABLE SERVICE FROM 080111 UNTIL 120826. 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 the applicant’s under other than honorable conditions (UOTHC) characterization of service. 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 NOTE(S): N/A 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 4. Army Regulation 635-5 (Personnel Separations), an interim change to this regulation, published on 2 October 1989, provides for an additional entry for continuous honorable active service, when a Soldier who previously reenlisted without being issued a DD Form 214 was discharged with any characterization of service except honorable. 5. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. 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. b. Paragraph 3-7b states 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. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if merited by the Soldier’s overall record. 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 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. 7. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NR 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) AR20230002830 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1