IN THE CASE OF: BOARD DATE: 9 November 2023 DOCKET NUMBER: AR20230004116 APPLICANT REQUESTS: * reconsideration of his request for upgrade of his under other than honorable conditions (UOTHC) discharge to honorable * change to his reentry eligibility (RE) code to RE-1 * a different, presumably more favorable narrative reason for separation * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * legal brief on behalf of the applicant * medical note * Veterans Affairs (VA) documents * Army Discharge Review Board (ADRB) Record of Proceedings (ROP) * Army Board for Correction of Military Records (ABCMR) ROP FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20140020567 on 16 July 2015. 2. Counsel states, in pertinent part: a. The applicant joined the Army desiring to be a military policeman (MP). He joined the military ahead of his wife, after they lost a child. He completed his basic training and went on to his MP training at Fort Hood, TX. During his time at Fort Hood, the applicant experienced respiratory issues, as well as dizziness and shortness of breath. When he arrived at his duty station, he began to physically recover to some extent. The applicant and his wife experienced marital issues, and he had depression and anxiety, and he began to drink. He requested leave so he could try to repair his marriage, but the leave was denied. He was three weeks away from his expiration term of service (ETS) date, when an issue arose. b. The applicant was on duty and was in charge of quarters. He went outside and saw a duffle bag sitting on a loading dock. He noticed a man mopping the area and thought it might be the man's bag. The applicant went back inside the barracks for 30 to 40 minutes, when he came back out, the bag was no longer there. He assumed someone had picked up their bag. The bag belonged to the commander, and he was held responsible for the bag's disappearance because he was in charge of quarters. He was advised to hire an attorney, who told him that he should sign all his paperwork to leave the Army because he had been held 90 days over his ETS date. The attorney advised him the discharge from the Army would be a general, under honorable conditions. The applicant signed the papers, not realizing he was not given a general discharge. c. The applicant requests that this derogatory information be removed from his record. He asks that this appeal be given the utmost scrutiny. The success of the appeal and future actions by the U.S. Army and the ABCMR will have a significant impact on his ability to receive proper benefits and recognition. He will continue to fight this derogatory information up through the Secretary of the Army. 3. As a new argument the applicant states he has service-connected injuries. His discharge was unfair at the time and remains so now. The discharge is procedurally and substantively defective. 4. On his DD Form 149, the applicant notes other mental health as related to his request. 5. On 4 June 1979, the applicant enlisted in the Regular Army for 3 years. Upon completion of training, he was awarded military occupational specialty 95B (Military Police). 6. On 1 July 1981, the applicant was reported as absent without leave (AWOL) and remained absent until he returned to military authorities on 16 July 1981. 7. On 28 July 1981, the applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ), for going AWOL from on or about 1 July 1981 until on or about 16 July 1981. His punishment included reduction in grade, forfeiture of $150.00 for one month, and 14 days extra duty. 8. Court-martial charges were preferred against the applicant for violations of the UCMJ, the relevant DD Form 458 (Charge Sheet) is not available for review. However, the ADRB ROP indicates that on 13 July 1982, the applicant was charged with making a false statement while under lawful oath and stealing organizational clothing and individual equipment of a value of about $180.00. 9. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, the ADRB ROP indicates: a. On 31 August 1982, the applicant consulted legal counsel, requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-martial, and he did not submit a statement in his own behalf. b. On 31 August 1982, the applicant's commander recommended approval of the applicant's request for discharge, and further recommended the issuance of an UOTHC. c. Consistent with the chain of command’s recommendations, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial on 31 August 1982, with an UOTHC discharge. d. On 2 September 1982, the applicant declined a separation medical examination. 10. The applicant was discharged on 22 September 1982. He was credited with 3 years, 3 months, and 4 days of net active service this period, with 15 days of lost time. His DD Form 214 (Certificate of Release or Discharge from Active Duty) contains the following entries in: * item 24 (Character of Service) – UOTHC * item 25 (Separation Authority) – AR [Army Regulation] 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 * item 26 (Separation Code) – JFS * item 27 (Reentry Code) – RE-3, 3B, 3C * item 28 (Narrative Reason for Separation) – Administrative Discharge-Conduct Triable By Court-Martial 11. The applicant petitioned the ADRB requesting upgrade of his UOTHC discharge. On 31 January 1992, the Board voted to deny relief and determined that his discharge was both proper and equitable. 12. The applicant petitioned the ABCMR requesting upgrade of his UOTHC discharge. On 16 July 2015, the Board voted to deny relief and determined that the overall merits of the case were insufficient as a basis for correction of his record. 13. The applicant provides the aforementioned documents, to include the following: a. Medical notes that show the applicant was evaluated and received treatment for multiple medical injuries and illnesses, including post-traumatic stress disorder (PTSD). b. Multiple pages of VA forms and correspondence in support of his VA disability compensation application, that show he and his dependents are not eligible for any VA benefits for his period of military service due to his discharge characterization. 14. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 15. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 16. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable, change of his reentry eligibility (RE) code to RE-1, and a more favorable narrative reason. He contends other mental health condition mitigates his discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * Applicant enlisted in the RA on 4 June 1979. * The applicant’s military service record is not available for review. * On 28 July 1981, the applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ), for going AWOL from on or about 1 July 1981 until on or about 16 July 1981. * Court-martial charges were preferred against the applicant for violations of the UCMJ, the relevant DD Form 458 (Charge Sheet) is not available for review. However, the ADRB ROP indicates that on 13 July 1982, the applicant was charged with making a false statement while under lawful oath; and stealing organizational clothing and individual equipment, of a value of about $180.00. * The applicant was discharged on 22 September 1982. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, Administrative Discharge- Conduct Triable By Court-Martial. His service was characterized as UOTHC. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, legal brief, ADRB Record of Proceedings (ROP), ABCMR Record of Proceedings (ROP), and civilian medical note. 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 has made a request to the board previously, he states his new argument is based on service-connected injuries and his contention that his discharge was unfair, at the time, and remains so now. He further indicates, his discharge was procedurally and substantively defective. In addition, the applicant reports that at the time of his misconduct, he experienced depression and anxiety due to marital strife, and started drinking. He requested leave so he could try to repair his marriage, but the leave was denied. e. Due to the period of service, no active-duty electronic medical records were available for review and no hard copy medical documentation from the time of service were submitted. The applicant is not service connected and there are no VA electronic medical records available for review. The applicant submitted post-military service medical documentation, indicating he has a neurodegenerative condition, Parkinson’s disease. f. After review of all available documentation, there is insufficient evidence of any mitigating BH conditions. There is no medical documentation of an in-service BH diagnosis. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence to support the applicant had a BH condition during his time in service. 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 contends other mental health condition mitigates his discharge. (2) Did the condition exist or experience occur during military service? Yes. The applicant reports experiencing depression and anxiety due to marital issues. (3) Does the condition or experience actually excuse or mitigate the discharge? No. Although the applicant’s military service record is not available for review, the ADRB ROP indicates that on 13 July 1982, the applicant was charged with making a false statement while under lawful oath and stealing organizational clothing and individual equipment of a value of about $180.00. Overall, there is no medical documentation of any in-service BH diagnoses, and the VA has not diagnosed the applicant with any BH conditions. And while the applicant self-asserts depression and anxiety, due to marital strife, and possible PTSD, due to being an MP, none of these conditions would mitigate his discharge. There is no nexus or natural sequela between any of his self-asserted BH conditions and his charges of theft and making a false statement, since none of the conditions would interfere with the capacity to distinguish right from wrong and act in accordance with the right. 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 behavioral health claim and the review and conclusions of the ARBA BH 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 any behavioral health conditions. Based on a preponderance of the evidence, the Board determined the character of service the applicant received upon separation, the reason for his separation, and the assigned RE code were 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20140020567 on 16 July 2015. 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. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the 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. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 states 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. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. c. Paragraph 2-15a governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR. The applicant must provide new relevant evidence or argument that was not considered at the time of the ABCMR's prior consideration. 3. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-6 provides: * RE code "1" applies to Soldiers completing an initial term of active service, who are considered qualified for enlistment if all other criteria are met. * RE code "2" is no longer in use but applied to Soldiers separated for the convenience of the government, when reenlistment is not contemplated, who are fully qualified for enlistment/reenlistment. * RE code "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, whose disqualification is waivable – they are ineligible unless a waiver is granted. RE-3P is not reentry eligibility code utilized by the Army. * RE code "4" applies to Soldiers separated from last period of service with a non- waivable disqualification. 4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides that separation codes are three-character alphabetic combinations that identify reasons for and types of separation from active duty. Separation code narrative reasons are aligned with applicable regulatory authority paragraphs. The separation code "JFS" is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, by narrative reason for the good of the service. 5. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the 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. c. Chapter 10 provided that a member who had committed an offense or offenses, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, an UOTHC discharge was normally considered appropriate. 6. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Navy Records (BCM/NR), on 3 September 2014, 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. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the mental health condition was not diagnosed until years later. 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. 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) AR20230004116 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1