IN THE CASE OF: BOARD DATE: 6 September 2023 DOCKET NUMBER: AR20230007201 APPLICANT REQUESTS: reconsideration of his prior request for an upgrade of his under other than honorable conditions discharge to honorable. 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) * Self-Authored Statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Rating Decision dated 10 November 2010 * Two Character Statements * Personal Statement to Senator * Veteran Eligible Treatment Services (V.E.T.S.) Court Coordinator Statement * V.E.T.S. Court Program Certificate * VA Health Summary (5 pages) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous considerations of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers AR20140003240 on 2 October 2014 and AR20190005664 on 24 May 2022. 2. The applicant states he is requesting a change to the characterization of his discharge to honorable from other than honorable (“OTH”). a. He has carried the “OTH” discharge on his DD Form 214 and it has affected his life more than he ever imagined. It comes up in conversation weekly and the shame is constantly renewed. Everyone wants to know what you did in the Army and wants to thank you for your service, but he always felt undeserving because of his discharge. b. He was not thinking clearly at the time the altercation ensued and he was threatened by a lower enlisted Soldier who was having sex with his wife. He acted out of reflex and anger. He regrets his actions and the part he played in the whole ordeal. He is better than that, but hindsight is always 20/20. He has completed and is now a mentor for the VETS court program. The focus of the program is recovery, anger management, post-traumatic stress disorder (PTSD) counseling, accountability, and community service. The community offers the program in conjunction with VA to Veterans who have had run ins with the law. c. He has been 100% sober and accountable for the past 7+ years and has made himself available to any Veteran in the program for mentoring. His life is on track and he is ready to put this issue [his discharge] behind him and move on. He feels that his 8 years of dedicated honorable service is deserving of reconsideration. 3. The applicant provides: a. A DD Form 214 for his active service period from 16 June 1998 to 25 January 2006, to be referenced in the service record. b. A VA Rating Decision, dated 10 November 2010, shows the applicant was denied service connection for PTSD. Although he was diagnosed with PTSD related to traumatic stressful events that took place during his period of service, service connection could not be assigned because his period of service is considered dishonorable for VA purposes. c. Two-character statements: (1) Major (Retired) JC offered in his statement dated 12 March 2023, he served as his Sapper Platoon Leader and noted he personally wrote him up for the Bronze Star Medal for his actions and dedication. The applicant volunteered for the long missions and “kept his men motivated.” He was one of the few to receive that distinguished honor. He believed the discharge the applicant received was a “slap in the face” after he took care of over 1000 men in Afghanistan. It was his understanding the applicant was led to believe he had no other options or opportunity. The applicant is a solid man and the Army would have been better off with him as a Command Sergeant Major. He recommends an upgrade immediately and is available to answer any questions. (2) Sergeant First Class (Retired) DG further noted in an undated letter the applicant was an outstanding Soldier and leader. He led a squad in combat during a difficult time in the war and brought them all home. He believes it was due to his outstanding leadership and his dedication to his troops. He led from the front. He also believe the applicant may have made some poor choices when he returned from deployment, but that should not define him nor his career. He believes the Army lost touch with the human side of Soldiers, they ask them to fight and then reintegrate, while forgetting that some Soldiers are suffering in silence, and when they act out of character, far too often the answer is to punish them and kick them out. The applicant has been a model citizen since he left the military, again showing that his actions were the result of a Soldier that had just returned home and was struggling to adapt to regular life. He believes the applicant is a good man and a great Soldier. He was proud to fight along side of the applicant and hopes the Board considers his discharge upgrade and allows this great American the opportunity to seek VA benefits. d. The applicant’s personal statement to the Senator was previously considered by the Board. d. A V.E.T.S. Court Coordinator statement, dated 27 August 2019, indicates the applicant successfully completed the program and was scheduled to graduate on 10 September 2019. The applicant participated weekly in both online and in treatment groups at the VA. He also completed additional treatment and testing requirements for the program listed on the statement and available for review by the Board. e. A V.E.T.S. Court Program certificate shows the applicant successfully completed the program. f. A VA Health Summary (5 pages) provides a list of active and inactive problems/conditions knows to VA, in addition to an assessment. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 16 June 1998. b. A Standard Form 88 (Report of Medical Examination), dated 18 December 1997, shows the applicant underwent a medical examination for the purpose of enlistment. The applicant’s clinical evaluation was marked normal, with the exception of scars due to tattoos, and in Block 77 (Examinee) he was marked qualified for service (airborne). c. His Enlisted Record Brief and DD Form 215 (Correction to DD Form 214) confirm he deployed to Afghanistan from 1 October 2003 through 1 August 2004. d. A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) shows he accepted nonjudicial punishment on 4 May 2005 for one specification of failure to obey a lawful regulation related to not registering his privately owned weapon and one specification of fleeing apprehension from a military policeman (MP). His punishment included reduction to sergeant (SGT)/E-5 and a suspended forfeiture. e. The applicant provided a rebuttal statement for consideration in his Article 15 proceedings. The applicant indicated the weapon was purchased from a fellow Soldier and prior to the purchase had been registered with the MPs and stored in the arms room. He does not believe he is innocent of the charge, but believes the punishment was too harsh. He further noted the MP gave no indication he was attempting to pull him over to include not turning on his lights nor a siren. He did not see the MP until he came back outside and saw the MP looking into his vehicle. The MP did not even come up the stairs to try and find him or apprehend him. He desired to succeed in the Army an did not want the incident to ruin his career. He was a great Soldier and leader who would continue to excel regardless of the situation. f. A DD Form 458 (Charge Sheet) shows on 3 January 2006, court-martial charges were preferred on the applicant for two specifications of unlawfully striking two junior Soldiers (Private First Class) on or about 18 December 2005. g. On 6 January 2005, after consulting with legal counsel he requested a discharge in lieu of trial by court-martial under the provisions Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 10. He acknowledged: * maximum punishment * he was guilty of the charges against him or of a lesser included offense * he does not desire further rehabilitation or further military service * if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate, although he requested a general discharge * he would be deprived of many or all Army benefits, he may be ineligible for many or all benefits administered by the Veterans Administration, * he may be deprived of his rights and benefits as a veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life h. The applicant provided a statement in conjunction with his separation request which stated in part he intended on making the Army a career. He had married and had two children since being stationed in Alaska and was proud of his time in the Army. He and his wife sought counseling for the incident through Army Community Services and he regretted his actions. He was remorseful for hurting the Soldier and felt it could have been handled differently, it should have never escalated the way it did. His wife was working two jobs to help with the costs of relocating the family and they planned on returning back to their hometown to finish college and work with a local company. He requested a general discharge in hopes of holding on to some benefits acquired over the past eight years to be the best husband and father he could be. i. On 12 January 2006, consistent with the chain of command recommendations, the separation authority approved the applicant’s request for discharge in lieu of trial by court-martial. He would be issued an Under Other Than Honorable Conditions Discharge Certificate and reduced to the lowest enlisted pay grade. j. Orders 013-0005, dated 13 January 2006, discharged the applicant from active duty with an effective date of 25 January 2006. k. On 25 January 2006, he was discharged from active duty with an under other than honorable conditions characterization of service. His DD Form 214 shows he completed 7 years, 7 months, and 3 days of active service with no lost time. He was assigned separation code KFS and the narrative reason for separation listed as “In Lieu of Trial by Court-Martial.” It also shows he was awarded or authorized: * Bronze Star Medal * Army Achievement Medal (2nd Award) * Army Good Conduct Medal (2nd Award) * National Defense Service Medal * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Kosovo Campaign Medal * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * Parachutist Badge * Air Assault Badge * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Afghanistan Campaign Medal * Army Lapel Button 5. On 14 February 2011, the applicant was notified the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 6. On 2 October 2014, the ABCMR considered the applicant’s requests for an upgrade of his under other than honorable conditions discharge in Docket Number AR20140003240. The Board noted the record shows that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court- martial. By requesting discharge, he admitted he was guilty of the charges and there was no indication the request was made under coercion or duress. The evidence presented did not demonstrate the existence of a probable error or injustice. The ABCMR denied his request for an upgrade. 7. On 24 May 2022, the ABCMR reconsidered the applicant’s requests for an upgrade of his under other than honorable conditions discharge in Docket Number AR20190005664. The applicant indicated he had been living with PTSD and a medical advisory was obtained in the processing of this case. The medical advisor opined that PTSD was not a mitigating factor for his misconduct. The Board concurred with the medical advisor and concluded there was insufficient evidence or an error or injustice that would warrant a change to the applicant’s characterization of service. The ABCMR denied his request for an upgrade. 9. By regulation (AR 635-5), the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 10. By regulation (AR 635-200), an individual who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial. An Under Other than Honorable Discharge Certificate normally is appropriate for a member who is discharged in lieu of trial by court-martial. 11. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 12. MEDICAL REVIEW: a. Background: The applicant is requesting a reconsideration of his prior requests for an upgrade of his under other than honorable conditions 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 9 on 16 June 1998 and reenlisted on 19 January 2002. * On 4 May 2005, he accepted an Article 15 for failing to register his privately owned weapon on Fort Richardson, AK on or about 29 December 2004; and for fleeing apprehension of a military police authorized to apprehend on or about 29 December 2004 * Court-martial charges were preferred against the applicant on 29 December 2005 and he was charged with two specifications of assault. * The applicant was discharged on 25 January 2006, under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. 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, his ABCMR Record of Proceedings (ROP), Self-Authored Statement, DD Form 214, VA rating decision dated 10 November 2010, letters of support, 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. Due to the period of service, limited active-duty electronic medical records were available for review from the time of service. However, there is no indication of any behavioral health treatment or diagnosis while in service. e. In his self-authored letter, the applicant indicates his misconduct occurred when he “was threatened by a lower enlisted soldier who was having sex with my wife, I acted out of reflex and anger”. However, this is inconsistent with his sworn statement the day after the incident where he reports that he was out drinking with friends, he brought two of them back to his home and when one of them made a comment about his wife, he started to physically assault the soldier. The other soldier intervened and was also assaulted by the applicant. The military police report dated 20 December 2005 indicates aggravated assault with grievous bodily harm as one of the charges against the applicant. There were significant safety concerns at the time since the applicant had in a previous incident assaulted another soldier (SPC David Wells), had previous domestic incidents, and was drinking excessively. f. The available VA treatment record indicates that the applicant has received medical treatment in the VA since 2006. A note dated 25 October 2007 indicates that the applicant was diagnosed with Major Depressive Disorder, PTSD and Alcohol Abuse. During that encounter, the applicant revealed a significant history of aggressive behavior and legal difficulties such as driving back from a friend's and when the MPs tried to pull him over, he eluded them and parked his vehicle outside the barracks. An unregistered handgun was found, and he was demoted to E-5. His second misconduct was assaulting two soldiers that had to be hospitalized with one soldier losing his eye. This resulted in his Chapter 10 separation. After his discharge, he served 52 days of incarceration for an incident at home with his wife in which he discharged his handgun in March 2006 and two DUIs in 2007 and 2008; with the applicant spending 7 days in jail for the second offense. g. On 18 Aug 2010, he completed psychological testing as part of a C & P evaluation and the applicant was diagnosed with PTSD. The record indicates that he was also diagnosed with PTSD, Depression, Alcohol Abuse and Personality Disorder, not otherwise specified (NOS). On 11 Dec 2017, he sought substance abuse treatment after receiving a DUI. On 12 Jun 2019, he reported continued sobriety and denied symptoms of depression, anxiety, and PTSD. His treating diagnosis was Substance Use Disorder, alcohol in remission. His most recent appointment was 20 September 2021, during that behavioral health encounter he did not indicate any significant mental health symptoms and his only diagnosis was Substance Use Disorder, alcohol in remission. The applicant is 30% service connection for other physical conditions. h. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is sufficient evidence to support the applicant was diagnosed with PTSD by the VA. His mental health condition was likely present during his time in service. However, regardless of the diagnosis, his condition would not mitigate the offenses he was charged with. 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 self-asserts PTSD during his time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. There is medical documentation in his VA treatment record to support a previous diagnosis of PTSD. During the course of his care with the VA, the applicant has been diagnosed with Major Depressive Disorder, PTSD, and Alcohol Abuse. However, there is no nexus between his asserted mental health condition (PTSD), nor his later diagnosed conditions (substance use disorder, MDD) and committing aggravated assault with grievous bodily harm. This misconduct is not part of the natural history or sequelae of his reported mental health conditions. And if these mental health concerns were present at the time of his misconduct, they do not affect one’s ability to distinguish right from wrong and act in accordance with the right. 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 there is no nexus between his asserted mental health condition (PTSD), nor his later diagnosed conditions (substance use disorder, MDD) and committing aggravated assault with grievous bodily harm. This misconduct is not part of the natural history or sequelae of his reported mental health conditions. 2. The Board noted the medical opine finding sufficient evidence to support the applicant was diagnosed with PTSD by the VA. His mental health condition was likely present during his time in service. However, regardless of the diagnosis, his condition would not mitigate the offenses he was charged with. The Board recognized the applicant’s letters of support attesting to his character but found no clemency with his post service misconduct whereas, he served 52 days of incarceration for an incident at home with his wife in which he discharged his handgun in March 2006 and two DUIs in 2007 and 2008; with the applicant spending 7 days in jail for the second offense. The Board agreed there is insufficient evidence of in-service mitigation to overcome the misconduct. Furthermore, the Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested reversal on the previous requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to an honorable discharge. Therefore, the Board denied relief. 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 Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR20140003240 on 2 October 2014 and AR20190005664 on 24 May 2022. 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. Army Regulation 635-5 (Separation Documents), states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of the 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 (General discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of this regulation states an individual who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial. An Under Other than Honorable Discharge Certificate normally is appropriate for a member who is discharged in lieu of trial by court-martial. 3. 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, 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. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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. 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 based on 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. 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. 5. Section 1556 of Title 10, United States 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230007201 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1