IN THE CASE OF: BOARD DATE: 15 November 2023 DOCKET NUMBER: AR20230002654 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions characterization of service * an upgrade of his narrative reason for separation APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) with personal statement * Two (2) DD Form 214 (Certificate of Release or Discharge from Active duty) for the periods ending 18 October 1984 and 10 July 1987 * Two (2) Character Reference Letters * National Institute of Mental Health two (2) page Article from www.nimh.nih.gov 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, in effect, in the years since his discharge, his maturity and character have improved, and he has provided years of service to his local community. Additionally, his application to the Board notes his request is related to other mental health (OMH) issues. 3. In a separate, self-authored statement, the applicant contends: a. He graduated from high school with honors and immediately joined the U.S Army Reserves. He completed basic training and advance individual training and returned home, where he found unsatisfactory employment. During this time, he met his wife he know he needed to do something better. He had a conversation with his wife, and they agreed he should enlist in the active duty, serve for 20 years, and then retire. He would be able to travel and see the world while providing for his family. After about a year and a half he was stationed at Fort Hood, Texas and he sent for his wife and two children who had never met him yet. b. He and his family were traveling to the base when they were involved in a hit and run accident; the driver who struck them fled the scene. He chased the vehicle, and a physical altercation took place; the driver ended up being a noncommissioned officer that outranked him. He received orders for Frankfurt, Germany but due to his wife not being in agreeance to go, he received orders for Korea. He and his wife had only been to together for six months and he was leaving for Korea. His wife threatened to leave him if he did not leave the military and come back home. He regrettably left the military. c. He grew up in a church family and his dad was a preacher. He knew he was not only letting himself down but also the Army as well. He and his wife eventually divorced and was determined to have a prosperous and God-fearing life. He started his career with the city of Philadelphia and ended up working for the prison system. After twenty- three years with the city of Philadelphia he changed career for an upgrade in pay. He went back to school for structural and civil engineering. He graduated number two in his class and went on to become a journeyman iron worker specializing in building bridges. He is presently a bridgeman and proud to be contributing to is country’s infrastructure. d. He has worked hard to make up for his mistakes. He was young and lacking proper decision-making skills to do what was right. This is his biggest regret, but he has tried to be of service to his country and community in whatever way possible. 4. The applicant served in the United States Army Reserve (USAR) prior to his enlistment in the Regular Army on 6 March 1986. 5. His enlisted qualification record shows he was promoted to the rank/grade of specialist four (SP4)/E-4 on 1 February 1987. 6. A DD Form 458 (Charge Sheet) shows, the following charges and specifications were preferred against the applicant – a. Charge I: Violation of the Uniform Code of Military Justice (UCMJ), Article 128 (Simple Assault) - Specification: the applicant, did on or about 11 May 1987, assault SSG , who was then known by the accused to be a noncommissioned officer, by striking noncommissioned officer on the face and body with his fists. b. Charge II: Violation of the UCMJ, Article 134 (General Offenses) -Specification: the applicant, did on or about 11 May 1987, wrongfully communicate to SSG threat to kill by saying “You mother fucker, I’ll kill you,” or words to that effect. 7. His record contains five sworn statements that attest to the allegation found on his DD Form 458 and one sworn statement from the applicant's then wife attesting to the hit and run accident by SSG and the altercation that happened afterwards. 8. On 23 June 1987 the applicant consulted with legal counsel and 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 discharge under other than honorable conditions if this request was approved, and of the procedures and rights available to him. Following this consultation, the applicant voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separation-Enlisted Personnel), chapter 10, for the good of the service. He made the following acknowledgements in his request: b. He acknowledged he was making this request of his own free will and had not been coerced in any way. He further acknowledged he understood the elements of the offense(s) charged and he was guilty of the charge(s) against him. or of (a) lesser included offense(s) which also authorized the imposition of a bad conduct or dishonorable discharge. c. He further acknowledged he understood that 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 Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. d. He was advised he could submit any statements he desired in his behalf. He provided a statement wherein he states, he was requesting a discharge. After thought and consideration, he felt a discharge was the best thing for he and his family at that time. His time in the Army was rewarding and gratifying. He would like to continue to serve in the Army, but at a later time. 9. The applicant's immediate commander along with the intermediate commander recommended approval of his request for discharge in lieu of trial by court-martial on 23 June 1987, and further recommend an under other than honorable conditions discharge. 10. On 25 June 1987, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, Chapter 10 and ordered the issuance DD Form 794A, Discharge Certificate (Under Other Than Honorable Conditions) and the applicant’s reduction to private/E-1. 11. The applicant underwent a mental status evaluation on or about 2 July 1987. The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows he was psychiatrically cleared for any administrative action deemed appropriate by command. 12. The applicant record contain Report of Medical History dated 9 July 1987 which he states that he was not in excellent health, and he was currently on medication. 13. The applicant was discharged on 10 July 1987, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his character of service was under other than honorable conditions, and he was credited with 1 year, 4 months and 5 days of net active service. Additionally, he received a separation code of "KFS" and a reentry code of " 3, 3C. 14. The applicant provides: a. A character reference letter dated 15 September 2022 from the Commonwealth of Pennsylvania, Harrisburg House of Representatives, which states that the applicant has a commendable work history which is superseded by his volunteerism. He has worked alongside the late Honorable State Representative David P. Richardson and late Honorable John Myers in addition to participating in community events that were hosted. b. A character reference letter dated 27 December 2022 from the County of Chester Veterans Affairs, which states, the applicant was young, driving with his family at the time, and a victim of a hit and run. Against his better judgement, he felt the need to protect his family. He pursued the vehicle that fled the scene and a physical altercation with the driver, who was a noncommission officer ensued. He regrets the decision he made, and he has improved his life. c. An undated character reference letter attesting to the applicant being a pillar in the community, a great worker, and a loving father and grandfather. d. A two-page article from www.nimh.nih.gov the National Institute of Mental Health about the teen brain: 7 things to know. 15. The Army Discharge Review Board reviewed the applicant's petition for an upgrade of his discharge. After careful consideration, the Board determined relief was not warranted since no matters or propriety or equity were submitted by the applicant or detected by the Board. Accordingly, his request for relief was denied. 16. Regulatory guidance, in effect at the time provided that a member who has committed an offense 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. A discharge under other than honorable conditions is normally considered appropriate. 17. The Board should consider the applicant's petition and his service in accordance with the published equity, injustice, or clemency determination guidance 18. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under other than honorable conditions (UOTHC) discharge and an upgrade of his narrative reason for separation. The applicant asserts other mental health 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: * The applicant served in the United States Army Reserve (USAR) prior to his enlistment in the Regular Army on 6 March 1986. * A Charge Sheet shows, the following charges and specifications were preferred against the applicant: Charge I - Violation of the Uniform Code of Military Justice (UCMJ), Article 128 (Simple Assault) - Specification: the applicant, did on or about 11 May 1987, assault SSG , who was then known by the accused to be a noncommissioned officer, by striking noncommissioned officer on the face and body with his fists; and Charge II - Violation of the UCMJ, Article 134 (General Offenses) -Specification: the applicant, did on or about 11 May 1987, wrongfully communicate to SSG threat to kill by saying “You mother fucker, I’ll kill you,” or words to that effect. * On 23 June 1987, the applicant voluntarily requested discharge under AR 635- 200, Chapter 10, in lieu of trial by court-martial. The request was approved. * The applicant was discharged on 10 July 1987, under AR 635-200, Chapter 10, in lieu of trial by court-martial with an UOTHC characterization of service. * ADRB declined his request for upgrade on 8 February 1993. 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 149, ABCMR Record of Proceedings (ROP), DD Form 214, documents from his service record and separation, as well as a self-authored statement, character reference letters (2), and an article from the NIMH. 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 asserts that other mental health issues are related to his request for discharge. The applicant shared in his self-authored statement additional factors to his circumstance, to include the hit and run that led to an altercation with an NCO, as well as the challenges in his marriage and his wife threatening to leave him if he didn’t get out. The applicant also shared the significant successes he has had in his career. Please see supporting documents for additional context. The applicant also shared a National Institute of Mental Health article about the teen brain and 7 things to know. e. The applicant’s time in service predates use of electronic health records (EHR) by the Army, hence no EHRs are available for review. His service record and supporting documents did not contain his service treatment records (STR). The applicant was seen for a separation mental status evaluation (MSE) on 2 July 1987. The MSE notes the applicant had an anxious and depressed mood, though his presentation was otherwise unremarkable. The doctor did not provide impressions typical of this type of evaluation, though it’s presumed he was cleared for separation. His Report of Medical History dated 9 July 1987 shows that he stated that he was not in excellent health, and he was currently on medication. He also indicated frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort. Hence, there are indications of mental health symptoms, however there are not records of a diagnosis, treatment, nor when the symptoms began (before or after the misconduct). No other data was provided to substantiate the applicant’s assertion. f. Per the applicant’s VA EHR, he is not service connected. He has not been engaged in any mental health care through the VA and he holds no mental health diagnoses with the VA. However, given the characterization of his discharge, he would not typically be eligible for most VA benefits. Through review of Joint Legacy Viewing, this applicant did have “Community Health Summaries and Documents” available, though there was no record of a mental health diagnoses, nor mental health records. g. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence, outside of self-report, to support the applicant had a condition at the time of service that mitigated his discharge, however there is evidence he had a potentially traumatic experience just prior to his misconduct (the “hit and run”). 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. There is also evidence of a potentially mitigating experience. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts a mitigating condition during his time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? No, however, the board could consider clemency. The applicant asserted other mental health as a mitigating factor in his discharge. There is insufficient evidence the applicant was ever diagnosed with a mitigating condition. However, records support he was in a moving vehicle incident where another soldier nearly hit the applicant’s car twice and ran them off the road, with applicant’s wife and babies in the car. This is a potentially traumatic experience and could have impacted his ability to think rationally in the moment. That said, trauma related symptoms would not typically mitigate assault of another soldier, nor threatening to kill him, as there is no nexus between depression and anxiety (symptoms he reported during medical clearing), nor trauma symptoms and the behaviors that led to his misconduct. 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, outside of self-report, to support the applicant had a condition at the time of service that mitigated his discharge. The Board noted the opine found that a potentially traumatic experience could have impacted his ability to think rationally in the moment. However, trauma related symptoms would not typically mitigate assault of another soldier, nor threatening to kill him, as there is no nexus between depression and anxiety. 2. The Board found the applicant’s post service accomplishments and character letter of support attesting to his honorable conduct commendable and applaud the applicant for his selfless community service. However, during deliberation, the Board found insufficient evidence that a behavioral health condition mitigated the applicant’s misconduct of assault of another soldier, nor threatening to kill him which contributed to the applicant’s discharge. Further, evidence of record shows, at the time of separation, documentation supports the narrative reason for separation properly identified on the applicant’s DD Form 214. As such, the Board determined under liberal consideration changes to the applicant’s narrative reason are not warranted. Based on the evidence and medical opine, 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 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. Army Regulation 635-5-1 (Separation Program Designators), prescribed the specific authorities, reasons for separation, and the separation program designator codes to be used for each reason for separation. The regulation stated "KFS" was the code applicable to discharges for the good of the service in lieu of trial by court-martial. The Separation Program Designator/Reenlistment Code Cross Reference Table in effect at the time provided the corresponding separation program designator "KFS." 3. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 states 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. A discharge under other than honorable conditions is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. 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. 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. 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, 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. 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. 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) AR20230002654 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1