IN THE CASE OF: BOARD DATE: 6 December 2023 DOCKET NUMBER: AR20230004767 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) characterization of service. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: •DD Form 149 (Application for Correction of Military Record), 24 January 2023 •Orders 52-2, 17 June 1991 •DA Form 4700 (Medical Record – Supplement Medical Data), 15 April 1992 to17 April 1992 •Standard Form 558 (Emergency Care and Treatment), 16 April 1992 •DA Form 3647 (Inpatient Treatment Record Cover Sheet), 16 April 1992 •DA Form 4700 (Medical Record – Supplement Medical Data), 17 April 1992 •DA Form 1307 (Individual Jump Record), from 16 December 1988 to28 September 1992 •DA Form 458 (Charge Sheet), 14 January 1993 •Memorandum for Commander, 8 February 1993 •DD Form 214 (Certificate of Release or Discharge from Active Duty), 25 March1993 •General Discharge Certificate, 25 March 1993 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 theinterest of justice to excuse the applicant's failure to timely file. 2.The applicant states, in effect, his character of discharge is inequitable due to beingaccused of drug abuse. He sustained an injury to his neck and head from an airborneinjury causing him to need surgery to repair his fractured cervical vertebrae. He was onmedications prescribed by medical staff following his surgery and he was not able tounderstand the implications of signing a document admitting to the drug abuse. 3.On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD) isrelated to his request. 4.He enlisted in the Regular Army on 17 February 1987. He subsequently reenlistedon 24 August 1989, for a period of 4 years. 5.His DA Form 2-1 (Personnel Qualification Record) shows the highest rank heobtained was Sergeant (SGT)/E-5 with a date of rank of 1 November 1989. 6.He provides the following: a.Hazardous Duty Orders 52-2, dated 17 June 1991, for performance of parachuteduty. b.Medical documentation for hospitalization on 15 April 1992 through 17 April 1992,which states, in effect, he had a hard "PLF" (Parachute Landing Fall), due to someone stealing his air and he was unable to release his ruck sack and landed hard. He landed on his neck and was diagnosed with a neck sprain. c.DA Form 1307 shows his jump record starting on 16 December 1988 and endingon 28 September 1992. 7.A DA Form 458 (Charge Sheet) shows he was being recommended for a trial byspecial court-martial. He was charged with violation of the Uniform Code of MilitaryJustice (UCMJ), for the following specification(s):•on or about 1 September 1989 and on or about 30 September 1989,wrongfully use marijuana•on or about 1 May 1992 and on or about 31 May 1992, wrongfully usemarijuana•on or about 7 November 1992, wrongfully use marijuana•on or about 7 November 1992, wrongfully possess one hit of lysergic aciddiethylamide (LSD)•on or about 7 November 1992, wrongfully use LSD•on or about 16 November 1992, wrongfully use marijuana8.On 19 March 1993, the applicant completed transition counseling acknowledgmentchecklist part I, stating he did not desire counseling for himself or his spouse.9.On 24 March 1993, he completed involuntary separation soldiers - under honorableconditions checklist part II, stating he did not desire counseling for the providedservices. 10.Orders 50-11, dated 18 March 1993, reduced the applicant's rank from Sergeant(SGT) to Private (PVT) with an effective date of 11 March 1993. 11.The available record is void of the applicant’s separation packet; however, a dulyconstituted DD Form 214 is sufficient to provide a fair and partial assessment of thecase. 12.His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows hewas discharged on 25 March 1993, under the provisions of Army Regulation (AR) 635-200 (Personnel Separation Enlisted Personnel), Chapter 10 (For the Good of theService- in Lieu of Court-Martial) in the grade of E-1. His service was characterized asUOTHC. He received a separation code of "KFS" and reentry code "3". He completed6 years, 1 month, and 9 days of net active service. He earned the Army Service Ribbon,National Defense Service Medal, Parachutist Badge, Army Good Conduct Medal, Non-Commissioned Professional Development Ribbon, Army Achieve Medal (1 oak leafcluster), Army Commendation Medal (1 oak leaf cluster). 13.There is no indication the applicant applied to the Army Discharge Review Boardwithin that Boards 15-year statute of limitations. 14.Discharges under the provisions of AR 635-200, Chapter 10, are voluntary requestsfor discharge for the good of the service, from the Soldier, to avoid a trial by court-martial. An UOTHC character of service is normally considered proper. 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 thanhonorable conditions (UOTHC) characterization of service. He contends PTSD mitigates his discharge. b.The specific facts and circumstances of the case can be found in the ABCMRRecord of Proceedings (ROP). Below is a summary of information pertinent to this advisory: •Applicant enlisted in the RA on 17 February 1987 and reenlisted on 24 August1989. •A DA Form 458 (Charge Sheet) shows he was being recommended for a trial byspecial court-martial. He was charged with violation of the Uniform Code ofMilitary Justice (UCMJ) Article 86, for the following specification(s): •on or about 1 September 1989 and on or about 30 September 1989, wrongfullyuse marijuana •on or about 1 May 1992 and on or about 31 May 1992, wrongfully use marijuana •on or about 7 November 1992, wrongfully use marijuana •on or about 7 November 1992, wrongfully possess one hit of lysergic aciddiethylamide (LSD) •on or about 7 November 1992, wrongfully use LSD •on or about 16 November 1992, wrongfully use marijuana •The available record is void of the applicant’s separation packet; however, hisDD Form 214 (Certificate of Release or Discharge from Active Duty) shows hewas discharged on 25 March 1993, under the provisions of Army Regulation (AR)635-200 (Personnel Separation Enlisted Personnel), Chapter 10 (For the Good ofthe Service - in Lieu of Court-Martial) in the grade of E-1. His service wascharacterized as UOTHC. He received a separation code of "KFS" and reentrycode "3". c.The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisorreviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, his ABCMR Record of Proceedings (ROP), DD Form 214, and documents from his service record. The available record is void of the applicant’s separation packet. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. d.The applicant states his character of discharge is inequitable due to beingaccused of drug abuse. He sustained an injury to his neck and head from an airborne injury causing him to need surgery to repair his fractured cervical vertebrae. He was on medications prescribed by medical staff following his surgery and he was not able to understand the implications of signing a document admitting to drug abuse. Medical documentation from hospitalization on 15 April 1992 through 17 April 1992, states, the applicant had a hard "PLF" (Parachute Landing Fall), due to someone stealing his air and he was unable to release his ruck sack and landed hard. He landed on his neck and was diagnosed with a neck sprain. e.The applicant is not service-connected, likely due to the characterization of hisservice. VA electronic medical records (JLV) available for review indicate the applicant was initially treated by the VA in April 2003 via urgent care for a medical issue. He was also treated in February 2007 and was seen again in October 2017 for a C and P evaluation related to his neck strain. On 09 August 2019, the VA was contacted by MUSC Institute of Psychiatry and informed the applicant was psychiatrically hospitalized following a suicide attempt via hanging. The applicant was flagged as a high-risk patient and provided with extensive outreach to support him with his mental health needs. He presented for his first mental health appointment with the VA on 25 November 2019. During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple During this intake appointment, he disclosed a history of childhood trauma and multiple f.Based on the available information, it is the opinion of the Agency BehavioralHealth Advisor that there is evidence the applicant had an experience and subsequent behavioral health condition during military service that mitigates his discharge. Although the applicant only selected PTSD as the basis for mitigation, related to his near-death experience during a parachute jump, the record indicates he also experienced an MST and harassment related to “Don't Ask, Don't Tell”. Kurta Questions: (1)Does any evidence state that the applicant had a condition or experience thatmay excuse or mitigate a discharge? Yes. The applicant asserts a mitigating condition. (2)Did the condition exist or experience occur during military service? Yes. Theapplicant self-asserts PTSD and the record indicates he experienced harassment and an MST. (3)Does the condition or experience actually excuse or mitigate the discharge? Yes.The applicant was discharged due to the wrongful use of marijuana on multiple occasion and wrongful use and possession of LSD. Given the nexus between MST related PTSD and the use of substances to alleviate/cope with the symptoms of his behavioral health condition, the reason for his discharge is fully mitigated. In accordance with the ARBA policy regarding MST and liberal consideration, I recommend the applicant’s character of service be upgraded to Honorable and his narrative reason be changed to Secretarial Authority. BOARD DISCUSSION: 1.After reviewing the application, all supporting documents, and the evidence foundwithin the military record, the Board found that partial relief was warranted. The Boardcarefully considered the applicant's record of service, documents submitted in supportof the petition and executed a comprehensive and standard review based on law, policyand regulation, and published Department of Defense guidance for liberal and clemencydeterminations requests for upgrade of his characterization of service. Upon review ofthe applicant’s petition, available military records and medical review, the Boardcarefully considered the advising official recommendation to upgrade the applicant’sdischarge to honorable and his narrative reason reflect Secretarial Authority based onfinding a nexus between MST related PTSD and the use of substances to alleviate/copewith the symptoms of his behavioral health condition. The Board determined there wasinsufficient evidence in the record to show the applicant was separated under theChapter 15, regarding the policy of Don’t Ask, Don’t Tell. 2.The Board under liberal consideration accounted for his decorations, awards, and hishonorable service prior to his reenlistment. However, the Board determined theapplicant’s drug use of marijuana occurred 1 September and 30 September prior to hishard "PLF" (Parachute Landing Fall) on 15 April 1992. Furthermore, evidence in therecord shows the applicant’s second encounter for illegal drug use was less than thirtydays after his fall on 1 and 31 May for again marijuana. The Board found the applicant’sclaim regarding his illegal use of drugs account to be inaccurate, evidence shows itoccurred prior, during and after his neck injury. The Board notwithstanding the medicalopine determined there is insufficient evidence that mitigates the applicant’s seriousmisconduct as a noncommissioned officer that demonstrates an upgrade to honorable.During deliberation, the Board noted the applicant’s had a prior period of honorableservice which is not currently reflected on his DD Form 214 and recommended thatchange be completed to more accurately show his period of honorable service by granting partial relief. 3.The Board understands many sexual assault victims do not report. However, whenprepondering evidence, there are sometimes symptoms of MST displayed by victimsprior to their separation. Personal MST statements provided to the VA are not alwayscorroborated. The medical review did determine there is evidence of MST as the VA(without any evidence other than his statement) awarded his treatment for MST due toPTSD; the Board considered this factor based on his self-authored statement fromFebruary 2023. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1.The Board determined the evidence presented is sufficient to warrant arecommendation for partial relief. As a result, the Board recommends that allDepartment of the Army records of the individual concerned be corrected by adding thefollowing additional statement to item 18 (Remarks) of his DD Form 214 to show •SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE •CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19870217 UNTIL19890823 2.The Board further determined the evidence presented is insufficient to warrant aportion of the requested relief. As a result, the Board recommends denial of so much ofthe application that pertains to upgrade of the applicant’s under other than honorableconditions (UOTHC) characterization of service. Microsoft Office Signature Line... 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 ofmilitary records must be filed within 3 years after discovery of the alleged error orinjustice. This provision of law also allows the ABCMR to excuse an applicant's failure totimely file within the 3-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so. 2.Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensurethat an applicant seeking corrective action by the Army Review Boards Agency (ARBA)be provided with a copy of any correspondence and communications (includingsummaries of verbal communications) to or from the Agency with anyone outside theAgency that directly pertains to or has material effect on the applicant's case, except asauthorized by statute. ARBA medical advisory opinions and reviews are authored byARBA civilian and military medical and behavioral health professionals and aretherefore 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. 3.Army Regulation (AR) 635-200, in effect at the time, provided guidance for theadministrative separation of enlisted personnel: a.Chapter 10 of this regulation provided a member who has committed an offenseor offenses, the punishment for which, under the UCMJ and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The discharge request may be submitted after court-martial charges are preferred against the member, or, until final action on the case by the court-martial convening authority. A member who is-under a suspended sentence of a punitive discharge may also submit a request for discharge for the good of the Service. An UOTHC discharge certificate normally is appropriate for a member who is discharged for the good of the Service. However, the separation authority may direct a general discharge certificate if such is merited by the member's overall record during the current enlistment. b.An honorable discharge is a separation with honor. The issuance of an honorabledischarge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability, and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. c.An under honorable conditions (general), discharge is a separation from the Armyunder honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d.An UOTHC discharge is an administrative separation from the service underconditions other than honorable. It may be issued for misconduct and the good of the service. 4.On 25 August 2017, the Office of the Undersecretary of Defense for Personnel andReadiness issued clarifying guidance for the Secretary of Defense Directive toDischarge Review Boards (DRB) and Boards for Correction of Military/Naval Records(BCM/NR) when considering requests by Veterans for modification of their dischargesdue in whole or in part to: mental health conditions, including PTSD; Traumatic BrainInjury; sexual assault; or sexual harassment. Boards are to give liberal consideration toVeterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. 5. 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 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. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. 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//