IN THE CASE OF: BOARD DATE: 21 September 2023 DOCKET NUMBER: AR20230001937 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * A personal 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 he was discharged under circumstances beyond his control. He was under severe mental and emotional strain the entire time he was on active duty. He enlisted in the Regular Army from the Texas Army National Guard thinking it would be a better career choice. It was his plan to have his wife and unborn child stay in Texas with her mother until he could set up a residence at Fort Hood. Once his son was born, he would take leave and bring them to Fort Hood. However, his mother-in-law convinced his wife to stay and file for a divorce. 3. On the applicant's DD Form 149, he indicates post-traumatic stress disorder (PTSD) as contributing and mitigating factors in the circumstances that resulted in his separation. However, the applicant has not provided any evidence to support the contention. 4. With prior Army National Guard service, the applicant enlisted in the Regular Army on 14 February 1989 serving in the military occupational specialty 63T (Bradley Fighting Vehicle Mechanic). The highest grade he held was E-2. 5. The applicant received adverse counseling on ten occasions between 31 July 1989 and 17 May 1990, for various infractions including being absent from formations; his personal appearance, attitude, and personal wellbeing; his respect for superior noncommissioned officers; his uniform appearance; missing dental appointments; being late or absent from his place of duty; and not being recommended for promotion. It was noted on several of the statements that the applicant was enrolled in the Army Alcohol and Drug Abuse and Prevention Control Program Track II. 6. The record indicates the applicant accepted nonjudicial punishment (NJP) on 22 June 1990, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failure to go to appointed place of duty at 0900 hours 28 April 1990, 0630 hours 14 May 1990, and 0845 14 May 1990. His punishment included reduction to E-1. 7. A Daily Staff Journal entry on 20 July 1990 reported that the applicant was involved in a fight and that alcohol was a factor in the altercation. 8. Court-martial charges were preferred against the applicant on 25 July 1990 for violations of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) shows he was charged with on or about 20 July 1990: * Striking a specialist with his hand and pushing his head into a wall * wrongfully communicating a threat to injure the specialist 9. On 26 July 1990, the applicant consulted with legal counsel and requested a discharge in lieu of trial by courts-martial under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He acknowledged: * he was making the request of his own free will * 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 * 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 10. The applicant's chain of command recommended approval of the applicant's request for discharge in lieu of trial by court-martial, and that he receive a UOTHC discharge. 11. On 12 August 1990, consistent with the chain of command recommendations, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed that the applicant receive a UOTHC discharge. 12. The applicant was discharged on 11 September 1990 in the grade of E-1. His DD Form 214 shows he completed 1 year, 6 months, and 28 days of net active service with 5 months and 15 days of prior active service and 1 year, 2 months, and 18 days of prior inactive service. His awards are listed as the Army Service Ribbon. 13. 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 for the good of the service. An Under Other than Honorable Discharge Certificate normally is appropriate for a member who is discharged for the good of the service or in lieu of trial by court-martial. 14. 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. 15. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) discharge. He contends he had PTSD that mitigated his misconduct. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) With prior Army National Guard service, the applicant enlisted in the Regular Army on 14 February 1989; 2) The applicant received adverse counseling on ten occasions between 31 July 1989 and 17 May 1990, for various infractions including being absent from formations; his personal appearance, attitude, and personal wellbeing; his respect for superior noncommissioned officers; his uniform appearance; missing dental appointments; being late or absent from his place of duty; and not being recommended for promotion. It was noted on several of the statements that the applicant was enrolled in the Army Alcohol and Drug Abuse and Prevention Control Program Track II; 3) Court-martial charges were preferred against the applicant on 25 July 1990 for striking a specialist and communicating a threat to injure the specialist; 4) The applicant was discharged on 11 September 1990, Chapter 10, in lieu of trial by court-martial. His character of service was UOTHC. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional hardcopy medical documentation was provided. d. On his application, the applicant noted PTSD is related to his request, as a contributing and mitigating factor in the circumstances that resulted in his separation. There is insufficient evidence the applicant deployed to a combat environment or was diagnosed with PTSD during his military service. He asserts in his application that he was experiencing marital problems and his military records indicated he was engaged in alcohol abuse treatment. A review of JLV was void of any behavioral health documentation. The applicant receives no service-connected disability. The applicant did not provide any civilian medical documentation indicating he has been diagnosed with any mental health condition including PTSD. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing PTSD that contributed to his misconduct. (2) Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing a PTSD while on active service. (3) Does the condition experience actually excuse or mitigate the discharge? No, there is insufficient evidence beyond self-report the applicant was experiencing PTSD while on active service. In addition, there is no nexus between PTSD and threatening and striking other people given that: 1) these types of misconduct are not part of the natural history or sequelae of PTSD; 2) PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. However, the applicant contends he was experiencing PTSD that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. BOARD DISCUSSION: 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 Medical Advisor. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in- service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by PTSD. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. 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, USC, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (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 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at that time provided that: 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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 of that regulation provided, in pertinent part, 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, an under other than honorable conditions discharge was normally considered appropriate. 4. 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 (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 a 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. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to DRBs and BCM/NR on 25 July 2018, 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.) AR20230001937 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1