IN THE CASE OF: BOARD DATE: 18 October 2023 DOCKET NUMBER: AR20230002944 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge, and a change of the narrative reason for separation, separation code, and reenlistment eligibility (RE) code. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Self-Authored Statement 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: a. His service was honorable. He was a dedicated Soldier, faithful, agreeable, dutiful, and was in good professional standing prior to the accident. If mental health services were encouraged after the accident, he would not be writing this letter. Perhaps his post-traumatic stress disorder (PTSD) and trauma would not have created a lifelong trajectory of trauma. He enlisted in 1982 and intended to stay 20 years to make the military his lifelong career. An accident in Fort Clayton, Panama, dramatically influenced his life and led to his PTSD diagnosis that touched all aspects of his life from that point on. The vehicular accident was not his fault. b. During recovery of a down military police vehicle, a Panamanian civilian who was a Police Lieutenant, hit his truck head-on at an excessive speed. The driver was killed, at no fault of the applicant. The PTSD caused by the accident accelerated his move from Panama and culminated in the breakdown of his family. He didn't know how to cope with his PTSD. He was young and didn't have access to counseling he had nowhere turn. He needed help and there was a stigma related to PTSD at that time. Culture told him that men should not seek mental healthcare. Instead, society and culture wanted him to suck it up and move on. In Panama, however, he did his job with honor. c. While stationed at Fort Hood, TX he was trying to forget the accident. The memory of his involvement in the death of a Panamanian citizen left him with undue guilt, shame, and recurring flashbacks which were not his to carry. He endured threats of incarceration and was personally blamed instead of being recognized as a victim of that accident. He and his family left because they thought their lives were under threat. Subsequently, he was depressed and filled with long-term PTSD when he arrived at Fort Hood. 3. The applicant enlisted in the Regular Army on 12 October 1982 for four years. His military occupational specialty was 63B (Light Wheel Vehicle Mechanic). 4. He served in Panama from 7 August 1984 through 13 June 1985. 5. The applicant was absent without leave (AWOL) on 27 December 1985. He was apprehended by civilian authorities and returned to military control on 19 April 1986. 6. Court-martial charges were preferred against the applicant on 25 April 1986 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with AWOL on or about 27 December 1985 until 19 April 1986. 7. The applicant consulted with legal counsel on 25 April 1986 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a UOTHC discharge; the procedures and rights that were available to him. a. After consulting with legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), Chapter 10, for the good of the service-in lieu of trial by court-martial. He further acknowledged he understood that if his discharge request was 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 and he may expect to encounter substantial prejudice in civilian life because of an UOTHC discharge. b. He elected not to submit statements in his own behalf. 8. The applicant’s commander recommended approval of his request for discharge in lieu of trial by court martial. The commander noted the applicant’s pattern of behavior indicated that retention was neither practical nor desirable. He had no potential for rehabilitation. The chain of command recommended approval and an UOTHC discharge. 9. On 16 October 1986, the separation authority approved the applicant’s request for discharge for the good of the service. He further directed the applicant's reduction to the lowest enlisted grade with an UOTHC characterization of service. 10. The applicant was discharged on 5 December 1986. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 10, for the good of the service in lieu of trial by court- martial, with Separation Code KFS and Reentry Code RE-3. His service was characterized as UOTHC. He completed 3 years, 10 months, and 1 day of net active service. He lost time from 27 December 1985 to 18 April 1986. He was awarded or authorized the Army Service Ribbon, Air Assault Badge, Marksman Qualification Badge, (M-16), and the Army Good Conduct Medal. 11. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 12. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 13. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. He contends 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 12 October 1982. * The applicant was absent without leave (AWOL) on 27 December 1985. He was apprehended by civilian authorities and returned to military control on 19 April 1986. * Court-martial charges were preferred against the applicant on 25 April 1986 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with AWOL on or about 27 December 1985 until 19 April 1986. * The applicant was discharged on 5 December 1986. He was discharged under the provisions of AR 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial, with Separation Code KFS and Reentry Code RE-3. His service was characterized as UOTHC. 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), active-duty medical records, self-authored statement, and 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 reports an accident in Fort Clayton, Panama, influenced his life and led to his self-asserted PTSD. Per the applicant, during recovery of a down military police vehicle, a Panamanian civilian who was a police lieutenant, hit his truck head-on at an excessive speed. Per the applicant, the driver was killed, at no fault of the applicant. Later while stationed at Fort Hood, TX he was trying to forget the accident but the memory of his involvement in the death left him with undue guilt, shame, and recurring flashbacks. He alleged enduring threats of incarceration and was personally blamed. He and his family left because they thought their lives were under threat. Of note, the applicant apparently went AWOL while stationed in the US, not while in Panama, where he reports feeling like his life was threatened. e. Due to the period of service, no active-duty electronic medical records were available for review. The applicant submitted hard copy medical documentation from his time of service, however, no behavioral health condition was evidenced in the documentation. f. VA electronic medical records available for review indicate the applicant is 10% service-connected for lumbar sacral or cervical strain and there is no service-connection for PTSD. The applicant did not submit any medical documentation post-military service substantiating his assertion of PTSD. g. Based on the information available, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence to support that the applicant has been diagnosed with PTSD. 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 self-asserts PTSD. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserted PTSD was present during his time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. There is insufficient evidence of any mitigating BH conditions. There is no evidence of any in-service BH diagnoses, and the VA has not service-connected the applicant for any BH condition. And while the applicant self-asserted PTSD, the applicant did not provide any medical documentation substantiating the diagnosis. 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 to support that the applicant has been diagnosed with PTSD. It was noted by the opine during the review there is lack of evidence of any in-service BH diagnoses, and the VA has not service- connected the applicant for any BH condition. 2. The Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The Board noted, the applicant provided insufficient evidence of post-service achievements or letters of support attesting to his honorable conduct that might have mitigated the discharge characterization. Evidence of record shows, at the time of separation, documentation supports the applicant’s reenlistment eligibility (RE) code) and narrative reason for separation were properly identified on the DD Form 214. As such, the Board determined under liberal consideration changes to the applicant’s RE-Code and narrative reason are not warranted. Furthermore, the Board determined there was insufficient evidence of an error or injustice which would warrant a change in the separation code. Based on the preponderance of evidence, the Board denied relief. 3. This board is not an investigative body. The Board determined despite the absence of the applicant’s medical records, they agreed the burden of proof rest on the applicant, however, he did not provide any supporting documentation and his service record has insufficient evidence to support the applicant self-asserted diagnosis of PTSD. ? 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. Title 10, U.S. Code, Section 1556, provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 provides a list of RE codes. * RE code "1" applies to Soldiers completing their term of active service, who are considered qualified for enlistment if all other criteria are met * RE code "2" is no longer in use but applied to Soldiers separated for the convenience of the government, when reenlistment is not contemplated, who are fully qualified for enlistment/reenlistment * RE code "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, whose disqualification is waivable – they are ineligible unless a waiver is granted * RE code "4" applies to Soldiers separated from last period of service with a non- waivable disqualification 4. AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. This regulation prescribed that the separation code "KFS" was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 10, based on discharge in lieu of trial by court-martial. Additionally, the SPD/RE Code Cross Reference Table established that RE code "4" was the proper reentry code to assign to Soldiers separated under this authority and for this reason. 5. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provided that a member who had committed an offense or offenses, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 6. 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. 7. 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. 8. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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) AR20230002944 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1