IN THE CASE OF: BOARD DATE: 29 November 2023 DOCKET NUMBER: AR20230003601 APPLICANT’S REQUEST: * an upgrade of his characterization of service from "Bad Conduct" to "Under Honorable Conditions (General)" * the narrative reason for his separation be changed from "Court-Martial Other" to an unspecified, presumably more preferable reason * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), block 29 (Dates or Time Lost During this Period) to show his period of Absence Without Leave (AWOL) ended on 30 August 2003 rather than 7 June 2004 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Petitions for Relief dated 11 January 2023, 27 January 2023, and 2 February 2023, respectively (three) * DD Form 2870 (Authorization for Disclosure of Medical or Dental Information) * Letter from Psychiatrist to Defense Counsel * DA Form 4700 (Medical Record-Supplemental Medical Data) * Military Medical Record, Mental Health Treatment Progress Notes * Letter from Army Clemency and Parole Board, Arlington, VA * U.S. Army Court of Criminal Appeals-Notice of Court-Martial Order Correction * DD Form 2808 (Report of Medical Exam) * Memorandum for Record, Subject: Job Related Performance of [the applicant] * Military Medical Record 2006-2007 * Extract from Special Court-Martial proceedings * Department of Veterans Affairs (DVA) Post-Traumatic Stress Disorder (PTSD) evaluation * Mental Health Clinic Progress Notes * Letters from Doctor, DVA Staff Psychologist (four) * Letters from Nurse Practitioner (three) * Letter from * Results of a study entitled "Stigma as a barrier to seeking health care among military personnel with mental health problems" * DVA Mental Health Treatment Plan * Letter from the applicant to the Secretary of the Army * Army Regulation 600-20 (Army Command Policy), paragraph 4-19 (The Army Harassment Prevention and Response Program (hazing, bullying, and discriminatory harassment)) * Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-5 (Types of Characterization or Description – General considerations) * Title 38 (Pensions, Bonuses, and Veterans' Relief), U.S. Code, Chapter I (DVA), Subsection 3.102 (Reasonable doubt) * Title 38, U.S. Code Presumption of Soundness cites * Secretary of the Army Memorandum, Subject: Army Directive 2015-40 (Implementing Procedures for Anti-Harassment Policy) * Officer of the Under Secretary of Defense Memorandum, Subject: Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment (Commonly referred to as the Kurta Memorandum) * Inspector General, Department of Defense, Alexandria, VA Memorandum, Subject: Anti-Harassment Policy Statement FACTS: 1. Standard of Review. When arriving at its findings and making its determinations, the Board shall review the petition for requested relief independent from any previous petitions submitted to the Army Discharge Review Board or the Army Board for Correction of Military Records (ABCMR). 2. The applicant’s requested relief for correction of block 29 of his DD Form 214 to show his period of AWOL ended on 30 August 2003 rather than 7 June 2004 is supported by sufficient evidence; as a result, this portion of the requested relief will be addressed in the "ADMINISTRATIVE NOTE(S)" section and will not be considered by the Board or further addressed in record of proceedings. 3. The applicant provides three separate written petitions for relief which are available in their entirety for the Board's consideration. He states, a military judge determined that he returned from AWOL on his own on 30 August 2003, 311 days earlier than the offense as charged and what is reflected on his DD Form 214. He further states, in effect, his characterization of service should be upgraded and the narrative reason for his separation should be changed because they were inequitable and unjust. He desires this relief in order to become eligible for full DVA benefits. a. He had no documented diagnosis of a mental health condition prior to entering the military. He underwent a medical examination prior to enlisting into the Army and there were mental health conditions noted at the time, therefore, there was a presumption of soundness at the time of his enlistment. b. He contends his childhood trauma was exacerbated by the anxiety and continuous harassment he endured from his leadership during his military service, particularly from his Platoon Sergeant. c. He further contends he was suffering from several mental health conditions that served as the catalysts for his misconduct. His military medical records show he was diagnosed and treated for an inability to adapt to the Army way of life and Generalized Anxiety Disorder/Unspecified Anxiety Disorder during his period of service. This caused him to self-medicate with alcohol, which also contributed to his misconduct. d. His DVA health records and personal research show his mental health conditions existed prior to his misconduct. He believes he was suffering from Insanity, Acquired Psychiatric Disorder, PTSD, impaired judgement, several Phobias, and loss of thought control at the time of his misconduct. 4. A DD Form 2808 shows the applicant underwent a medical examination prior to his enlistment on 18 July 2002. His medical status was deemed acceptable, and he was qualified for military service. 5. On 22 October 2002, the applicant enlisted in the Regular Army in the rank/pay grade of private 2/E-2 for a period of 5 years. Upon completion of initial entry training, he was assigned to a Unit at Fort Polk, LA. 6. On 19 July 2003, the applicant's duty status was changed from Present for Duty to AWOL. 7. On 18 August 2003, his duty status was changed from AWOL to Dropped from Rolls and he was reported as a deserter to law enforcement agencies. 8. A DD Form 458 (Charge Sheet), shows charges were preferred against the applicant for one specification of absenting himself from his unit, without prior authority, on 19 July 2003 and remaining so absent. 9. A DD Form 616 (Report of Return of Absentee), shows the applicant surrendered himself to military authorities at Fort Polk, LA on 8 June 2004. 10. A DA Form 4700 shows the applicant was treated for an anxiety/panic attack at the Bayne-Jones Emergency Medical Services on 13 December 2004. He was medically cleared for transport but could not go via air. 11. Special Court-Martial Order (SPCMO) Number 7, dated 15 June 2005, shows the applicant was arraigned before a Special Court-Martial empowered to direct a Bad Conduct Discharge (BCD). a. The applicant was found guilty of one specification of with the intent to shirk important service, namely: deployment in support of Operation Enduring Freedom, by quitting his unit from on or about 19 July 2003 and remaining absent in desertion until on or about 8 June 2004. b. His sentence was adjudged on 3 December 2004. The sentence included reduction to the grade of E-1; forfeiture of $795.00 pay for 9 months; confinement for 9 months; and to be discharged from service with a BCD. c. The sentence was approved on 15 June 2005 and, except for the part of the sentence extending to the bad conduct discharge, was ordered to be executed. The applicant was credited with 30 days confinement against the sentence to confinement. 12. On 17 October 2005, the applicant underwent an annual psychiatric evaluation which shows, in part, there was no change in his medical issues diagnosis. 13. An extract from the applicant's military medical record shows, in part, he was treated for Anxiety Disorder (Not Otherwise Specified (NOS)) on 29 June 2006. 14. U.S. Army Court of Criminal Appeals, Notice of Court-Martial Order Correction, dated 6 March 2007, ordered SCMO Number 7, dated 15 June 2015, be corrected as follows: a. To reflect in the arraignment paragraph, the applicant’s middle initial of his name be changed from "E" to "S." b. By adding in line six of the specification of Charge I, after the words, "Finding: Guilty" the words "except for the word and figures '8 June 2004,' substituting therefor the word and figures '30 August 2003.' Of excepted word and figures 'Not Guilty,' of the substituted word and figure 'Guilty.'" ? 15. An extract from the applicant's military medical record shows, in part: a. On 11 January 2007, he was seen by a psychologist for Anxiety Disorder NOS. The applicant reported he had suffered from varying forms of anxiety that included obsessive compulsive disorder, social anxiety, panic attacks, and somatic complaints. He reported experiencing several significant stressors over the past couple of years that included a 5-month confinement for a 30-day AWOL from the Army in 2004. b. On 22 August 2007, he was treated for Anxiety Disorder NOS and follow-up for anxiety/panic attacks. c. On 29 August 2007, he was seen by a mental health provider for Anxiety Disorder NOS. He reported that his anxiety symptom had recently increased due to a number of life stressors including approaching involuntary separation from the Army for actions in 2005, limited social support, and recently learning of the death of a former squad leader. He reported that he dishonored himself and his family by his actions in 2005 and wanted to redeem himself by reenlisting in the Army. He believed that seeking treatment was necessary to achieve this goal. 16. The applicant's DD Form 214 shows he was discharged on 31 August 2007, under the provisions of Army Regulation 635-200, Chapter 3, as a result of court-martial. His service was characterized as bad conduct, with Separation Code "JJD" and Reentry Code "4." He was credited with completion of 3 years, 5 months, and 8 days of net active service. He had lost time due to absence without leave from 19 July 2003 to 7 June 2004; and due to confinement from 3 December 2004 to 14 June 2005. He did not complete his first full term of service. 17. The applicant petitioned the Army Discharge Review Board (ADRB) for relief in ADRB Docket Number AR20110024215, which was considered on 30 May 2012. 18. The applicant petitioned the ABCMR for relief in ABCMR Docket Number AR20170007211, which was considered on 3 June 2020. 19. In addition to the previously discussed documents, the applicant provides the following documents, which are available in their entirety for the Board's consideration. a. A letter from a psychiatrist at the Bayne-Jones Army Community Hospital, Department of Behavioral Health, Fort Polk, LA, to the applicant's Defense Counsel. He informed counsel that the applicant had been treated at their facility since18 August 2004,and his phobia regarding air travel was documented in his clinical chart and recommend that his transfer be conducted using ground transportation if possible. b. A letter from the Army Clemency and Parole Board (ACPB), Arlington, VA, dated 8 July 2015, shows the applicant was advised that since he was no longer in confinement or on military parole supervision, the ACPB no longer had jurisdiction in his case so, his case was being forwarded to the Case Management Division of the Army Review Boards Agency for proper disposition. c. Title 38, U.S. Code, Presumption of Soundness cites that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment. Therefore, when no preexisting medical condition is noted upon entry into service, a Veteran is presumed to have been sound in every respect. d. A Memorandum for Record, Subject: Job Related Performance of [the applicant], dated 22 November 2004, shows a noncommissioned officer stated that while the applicant was under his supervision on a detail, he was always on time and in proper uniform for work call. When asked to perform a certain task, he gave no quarrels and made no condescending remarks. He too initiative and completed several tasks without being told to do so. e. His Military Medical Record for the period of 2004 through 2007 shows, in part, that he was treated for Anxiety Disorder NOS, panic attacks, and anxiety. f. An extract from the applicant's Special Court-Martial proceedings, which shows he attempted to turn himself in to military authorities on 30 August 2003 nearly a year prior to the 8 June 2004 date reflected in his charges. It also shows the applicant contended he had to go to the unit area every day and clean up after everyone else and that he had reported to a Behavioral Health counselor that he felt he was being bullied and harassed. The applicant's First Sergeant explained that the tasks he was performing after duty hours were part of his extra duty he received as a result of his misconduct. g. A DVA PTSD evaluation, dated 21 March 2019, shows the applicant was not deployed during his period of service, described the loss of multiple friends, including a team leader who was killed in combat. He lost his mother in 2010 and his sister in 2014. His father had been out of his life since he was a child. The examiner diagnosed the applicant with Generalized Anxiety Disorder by history of PTSD. h. DVA Mental Health Clinic Progress Notes rendered on 5 December 2022, shows the applicant was exposed to domestic violence and physical abuse as a child. He sought help to cope with his depression and anxiety. i. Letters from Doctor , DVA Staff Psychologist, show she treated the applicant over a period of 3 years for PTSD and Generalized Anxiety Disorder with panic attacks and opined these conditions were exacerbated by or developed as the result of his military service. j. Letters from Nurse Practitioner show she has treated the applicant since 2015 for diagnoses of PTSD, Generalized Anxiety Disorder, and Illness Anxiety Disorder. She opined stressors encountered during the military couple with stressors at home triggered psychiatric illness during his military career. He went AWOL due to acute anxiety which later led to a BCD. k. A letter from addressed to the DVA, dated 4 February 2023, shows he has known the applicant for sixteen years through their affiliations with numerous Masonic groups. The applicant joined a Masonic lodge in 2006 and has been the Chaplain for most of those years. He was appointed Assistant Secretary in January 2023. He is a caring person, proud of his past military service, and a family man who is of outstanding moral fiber and virtue. l. The results of a study entitled "Stigma as a barrier to seeking health care among military personnel with mental health problems" which show approximately 60 percent of military personnel who experience mental health problems do no seek help, yet many of them could benefit from professional treatments. Across military studies, one of the most frequently reported barriers to help-seeking for mental health problems is concern about stigma. m. A DVA Document Evidence Submission form, dated 13 July 2023, shows the applicant's DVA mental health assessment and latest progress notes at the time. It describes the history of the applicant's treatment and a mental health treatment plan for moving forward. n. on 18 August 2023, the applicant rendered a letter addressed to the Secretary of the Army wherein he requested her assistance with locating his missing military mental health records from the Records Management Center, Saint Louis, MO; DVA Records Management Center; and Bayne-Jones Army Community Hospital, Behavioral Health Department, Fort Johnson, LA (Formerly known as Fort Polk). o. A copy of Army Regulation 600-20, paragraph 4-19, which explains the Army Harassment Prevention and Response Program (hazing, bullying, and discriminatory harassment) policy p. A copy of Army Regulation 635-200, paragraph 3-5, which explains how a Soldier's characterization of service should be determined. q. Title 38, U.S. Code, Chapter I, Subsection 3.102, which describes how the DVA should administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point such doubt will be resolved in favor to the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does no satisfactorily prove or disprove the claim. r. Secretary of the Army Memorandum, Subject: Army Directive 2015-40 (Implementing Procedures for Anti-Harassment Policy), dated 30 October 2015. s. Officer of the Under Secretary of Defense Memorandum, Subject: Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment (Commonly referred to as the Kurta Memorandum), dated 25 August 2017. t. Inspector General, Department of Defense, Alexandria, VA Memorandum, Subject: Anti-Harassment Policy Statement, dated 20 September 2019. 20. By regulation, a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed, and the2 affirmed sentence ordered duly executed. 21. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 22. Published guidance to the Boards for Correction of Military/Naval Records (BCM/NR) clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 23. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his characterization of service from "Bad Conduct" to "Under Honorable Conditions (General),” a change in his narrative reason for separation to something more favorable, and a correction of his DD Form 214 regarding his AWOL dates. The applicant asserts mental health as a mitigating factor in 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 into the Regular Army on 22 October 2002. * A DD Form 458 (Charge Sheet), shows charges were preferred against the applicant for one specification of absenting himself from his unit, without prior authority, on 19 July 2003 and remaining so absent. He was dropped from rolls on 18 August 2003. A DD Form 616 (Report of Return of Absentee), shows the applicant surrendered himself to military authorities at Fort Polk, LA on 8 June 2004. * Special Court-Martial Order (SPCMO) Number 7, dated 15 June 2005, shows the applicant was arraigned before a Special Court-Martial empowered to direct a Bad Conduct Discharge (BCD). The applicant was found guilty of one specification of with the intent to shirk important service, namely: deployment in support of Operation Enduring Freedom, by quitting his unit from on or about 19 July 2003 and remaining absent in desertion until on or about 8 June 2004. * The sentence was approved on 15 June 2005 and, except for the part of the sentence extending to the bad conduct discharge, was ordered to be executed. * He was discharged on 31 August 2007, under AR 635-200, Chapter 3, as a result of court-martial. His service was characterized as bad conduct, with Separation Code "JJD" and Reentry Code "4." He was credited with completion of 3 years, 5 months, and 8 days of net active service. He had lost time due to absence without leave from 19 July 2003 to 7 June 2004; and due to confinement from 3 December 2004 to 14 June 2005. 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 petition for relief, his ABCMR Record of Proceedings (ROP), DD Form 214, documents from his service record and separation, as well as medical records, letters, and other supporting documents included by the applicant. 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 childhood trauma was exacerbated by his military experience (anxiety and harassment from leadership). He asserts that several mental health conditions were the catalyst to his misconduct, and in one letter asserts that that he had the “first symptoms of an Acquired Psychiatric Disorder and or Post Traumatic Stress Disorder…”. He also goes on to assert generalized anxiety disorder (GAD). He suggests these conditions developed or were in the early stages at the time of his offense. He also asserts that while a previous board noted his trauma/PTSD was secondary to childhood trauma, his MEPS results provide the presumption of soundness (as no mental health concerns were noted). He asserts he had no known mental health concerns prior to MEPS. He also asserted that there were significant family stressors present at the time he went AWOL. In one letter to the board from 2 February 2023, he also asserts psychosis. And lastly, he asserts harassment/bullying contributed to his mental health concerns and misconduct as well. e. A DD Form 2808 shows the applicant underwent a medical examination prior to his enlistment on 18 July 2002. No mental health conditions were reported/endorsed nor found, his medical status was deemed acceptable, and he was qualified for military service. The applicant’s electronic health record (EHR) from his time in service reflects that he was diagnosed with anxiety (28 December 2006), anxiety disorder NOS (13 September 2007), as well as hypochondriasis (19 January 2007). His first EHR encounter for mental health is from 11 January 2007. During this initial intake he reported he’d been dealing for years with (self-reported) obsessive compulsive disorder (OCD), social anxiety, panic attacks and somatic complaints. On 29 August 2007, he was seen by a mental health provider for anxiety disorder NOS. He reported that his anxiety symptom had recently increased due to a number of life stressors including approaching involuntary separation from the Army for actions in 2005, limited social support, and recently learning of the death of a former squad leader. He was seen for a total of seven encounters prior to his discharge. f. Paper records indicate he engaged in some care even earlier, though no records present a case for mental health concerns documented prior to his misconduct. A DA Form 4700 shows the applicant was treated for an anxiety/panic attack at the Bayne- Jones Emergency Medical Services on 13 December 2004. He was medically cleared for transport but could not go via air. A letter from a psychiatrist at the Bayne-Jones Army Community Hospital to the applicant's Defense Counsel noted that the applicant had been treated at their facility since18 August 2004, and his phobia regarding air travel was documented in his clinical chart and recommend that his transfer be conducted using ground transportation if possible. g. In his self-authored letters, he does go into great detail, providing self-reported evidence of his experiences and symptoms. In sum, he believes he was in a mental health crisis when he went AWOL. He believes that his symptoms led to him misusing alcohol which also contributed to his misconduct. However, there is no record of the applicant being diagnose with PTSD nor psychosis during his time in service, outside of his self-report. h. Per the applicant’s VA EHR, he is not service connected, though given the characterization of his discharge, he would not typically be eligible for most VA benefits. The applicant has been engaged in care at the VA since 2011, and with mental health care since 2012. He has been diagnosed with anxiety disorder, anxiety disorder – unspecified, hypochondriasis/illness anxiety disorder, other recurrent depressive disorder, major depressive disorder – recurrent – severe, and PTSD. He has engaged in therapy, case management/MHTC, and medication management. Through review of JLV, this applicant did have “Community Health Summaries and Documents” available, with his records reflecting a diagnosis of PTSD (noted in 2019 and 2023), depression (2023), anxiety (2023), and GAD (2007 and 2023). i. The applicant also included paper copies of some of his health records in his supporting documents, as well as letters written by his providers in support of his claims. A VA PTSD evaluation completed 21 March 2019 reflects the applicant was diagnosed with GAD by history and PTSD, though the trauma was not combat related (as he never deployed). Further VA records show the applicant was exposed to domestic violence and physical abuse as a child and that he sought help to cope with his depression and anxiety. A letter from his VA psychologist also supports that his PTSD, GAD and panic attacks were exacerbated by or developed as a result of his military service. A letter from his nurse practitioner also supported that childhood/home stressors coupled with military stressors led to his psychiatric illness. She reported he went AWOL due to this acute anxiety. In sum, his ongoing providers consistently reported that is it is at least as likely as not that this symptoms of PTSD and GAD were exacerbated by, or was developed while he was in the military. j. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is sufficient evidence to support the applicant had a condition or experience at the time of service that mitigated 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 other mental health and PTSD, as well as harassment. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts the potentially mitigating conditions and experiences were present during his time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant asserts mitigation due numerous mental health conditions (anxiety, panic, PTSD, psychosis), as well as harassment. Trial records indicate his leadership may have been aware of mistreatment or harassment. His medical records support diagnosis of anxiety and hypochondriasis, though, these diagnoses were not made until after his misconduct. However, given his history and self-report, it does appear that mental health concerns were likely present prior to his misconduct as well. Records since his time in service reflect PTSD and GAD diagnoses, with multiple providers suggesting his conditions are secondary to, or were exacerbated by his time in service. The applicant went AWOL, which is an avoidance behavior consistent with the natural history and sequalae of anxiety and trauma related disorders. Hence, there is a nexus between this behavior and the misconduct that led to his discharge. Medical mitigation is supported. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the 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 determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and the medical review, the Board carefully considered the advising official finding sufficient evidence to support the applicant had a condition or experience at the time of service that mitigated his discharge. The Board based on the preponderance of evidence found the applicant was a deserter and not AWOL. It was noted by the Board, the applicant stated in his self-authored statement that he attempted to turn himself in but didn’t. 2. The Board found the applicant underwent a medical examination prior to his enlistment on 18 July 2002. His medical status was deemed acceptable, and he was qualified for military service. The Board notwithstanding the medical opine finding there is a nexus between this behavior and the misconduct that led to his discharge. However, the Board agreed, there is insufficient evidence to support the applicant did not know right from wrong when he went AWOL prior to his unit deploying. Furthermore, the Board found at the time of separation, documentation supports the narrative reason for separation properly identified on the applicant’s DD Form 214. Based upon a preponderance of the evidence, his misconduct, and notwithstanding the advising official recommendation, the Board determined upgrade of the applicant’s discharge is not warranted. Therefore, relief was denied. 3. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. ? 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: Except for the correction addressed in Administrative Note(s) below, 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 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. ADMINISTRATIVE NOTES: 1. Army Regulation 635-8 (Separation Processing and Documents), currently in effect, states for enlisted Soldiers, show inclusive periods of time lost to be made good under Title 10 U.S. Code, Section 972, and periods on nonchargeable time after expiration time of service in Block 29 of the DD Form 214. 2. The evidence of record confirms the applicant returned from AWOL 30 August 2003 rather than 8 June 2004. 3. Based on the foregoing, amend Block 29 of the applicant's DD Form 214, ending 31 August 2007 by: * deleting the entry "20030719-20040607" * adding the entry "20030719-20030829" REFERENCES: 1. Title 10, U.S. Code, Section 1552(b), provides, with respect to courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 2. Title 10, U.S. Code, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Court-martial convictions stand as adjudged or modified by appeal through the judicial process, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 3. 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. 4. Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR, prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. 5. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty or was otherwise so meritorious that any other characterization would clearly be inappropriate. b. A general discharge was a separation from the Army under honorable conditions. When authorized, separation authorities could issue a general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial in the following circumstances. (1) An under other than honorable conditions discharge will be directed only by a commander exercising general court-martial authority, a general officer in command who has a judge advocate or legal advisor available to his/her command, higher authority, or the commander exercising special court-martial convening authority over the Soldier who submitted a request for discharge in lieu of court-martial (see chapter 10) when delegated authority to approve such requests. (2) When the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army. Examples of factors that may be considered include the following: * Use of force or violence to produce bodily injury or death * Abuse of a position of trust * Disregard by a superior of customary superior-subordinate relationships * Acts or omissions that endanger the security of the United States or the health and welfare of other Soldiers of the Army * Deliberate acts or omissions that seriously endanger the health and safety of other persons d. A BCD will be given to a Soldier pursuant only to an approved sentence of a general or special court-martial. The appellate review had to have been completed and the affirmed sentence then ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. 6. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service BCM/NRs to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions 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. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003601 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEDING 1