IN THE CASE OF: BOARD DATE: 20 December 2023 DOCKET NUMBER: AR20230005839 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) characterization of service to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20180008747 on 19 July 2019. 2. The applicant states, he served honorably in Operation Desert Storm and earned a Southwest Asia Service Medal with three bronze service stars. He underwent evaluation for stress-related issues due to his service in Desert Storm; however, he did not receive a follow-up evaluation by the Army due to the deactivation of the 2nd Army Division. 3. The applicant enlisted in the Regular Army on 14 September 1989, for 4 years. The highest rank/grade he held was private first class/E-3. 4. On 3 December 1991, he accepted non-judicial punishment under Article 15, of the Uniform Code of Military Justice (UCMJ), for on or about 28 October 1991, willfully and unlawfully altering a public record. His punishment was reduction to private/E-2, forfeiture of $197.00 pay for one month, restriction and extra duty for 14 days. 5. On 21 May 1992, court-martial charges were preferred against the applicant. The DD Form 458 (Charge Sheet) shows he was charged with one charge and two specifications of being absent without leave from: * on or about 5 December 1991 until on or about 31 December 1991 * on or about 27 March 1992 until on or about 23 April 1992 6. The applicant consulted with legal counsel on 26 May 1992 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a UOTHC discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was 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. b. He elected not to submit a statement in his own behalf. 7. On 29 May 1992 and 1 June 1992, the immediate and intermediate commanders recommended approval of the applicant's request for discharge and the issuance of a discharge UOTHC. 8. On 10 June 1992, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, and ordered the issuance of an UOTHC discharge. 9. The applicant was discharged accordingly on 15 September 1992, under the provisions of AR 635-200, Chapter 10, for the good of the service - in lieu of trial by court-martial, with an UOTHC characterization of service in the grade of E-1. He received a Separation Code of “KFS” and a reentry code “3.” His DD Form 214 (Certificate of Release or Discharge from Active Duty) contains the following entries: a. He completed 2 years, 10 months, and 10 days of net active service with 3 months and 25 days of foreign service during the period covered. b. Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows: * Army Commendation Medal * National Defense Service Medal * Army Service Ribbon * Sharpshooter Badge Grenade * Marksman Badge Rifle * Southwest Asia Service Medal with 3 bronze service stars * Kuwait Liberation Medal c. Block 18 (Remarks) the entry “SERVICE IN SOUTHWEST ASIA 910125 - 910519” d. Block 29 (Dates of Time Lost During This Period): * 05 December 1991 to 30 December 1991 * 27 March 1992 to 22 April 1992 10. On 30 December 1996, the Army Discharge Review Board (ADRB) reviewed the applicant’s request for an upgrade of his discharge. The ADRB found his discharge to be both proper and equitable under the circumstances and voted to deny his request. 11. The ABCMR considered the applicant's request for upgrade of UOTHC discharge on 19 July 2019. After reviewing the application and all supporting documents, the Board determined relief was not warranted. The Board found the evidence presented did not demonstrate the existence of a probable error or injustice as a basis for correction of the applicant’s records. 12. Regulatory guidance in effect at the time provided discharges under the provision of AR 635-200, Chapter 10, where voluntary requests from the Soldier to be discharged in lieu of a trial by court-martial. 13. The Board should consider the applicant’s argument and evidence, along with the overall record, in accordance with the published equity, injustice, or clemency determination guidance. 14. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under other than honorable conditions (UOTHC) characterization of service to under honorable conditions (general). 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 14 September 1989. * On 3 December 1991, he accepted non-judicial punishment under Article 15, of the Uniform Code of Military Justice (UCMJ), for on or about 28 October 1991, willfully and unlawfully altering a public record. * On 21 May 1992, court-martial charges were preferred against the applicant. The DD Form 458 (Charge Sheet) shows he was charged with one charge and two specifications of being absent without leave from: on or about 5 December 1991 until on or about 31 December 1991 and on or about 27 March 1992 until on or about 23 April 1992. * Applicant was discharged on 15 September 1992. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 10, for the good of the service - in lieu of trial by court-martial, with an UOTHC characterization of service in the grade of E-1. He received a Separation Code of “KFS” and a reentry code “3.” * On 30 December 1996, the Army Discharge Review Board (ADRB) reviewed the applicant’s request for an upgrade of his discharge. The ADRB found his discharge to be both proper and equitable under the circumstances and voted to deny his request. * On 19 July 2019, ABCMR considered the applicant's request for upgrade of his UOTHC discharge. After reviewing the application and all supporting documents, the Board determined relief was not warranted. The Board found the evidence presented did not demonstrate the existence of a probable error or injustice as a basis for correction of the applicant’s records. 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 293, DD Form 214, ABCMR Record of Proceedings (ROP), and documents from his service record and separation. 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. The applicant states, he served honorably in Operation Desert Storm and earned a Southwest Asia Service Medal with three bronze service stars. He underwent evaluation for stress-related issues due to his service in Desert Storm; however, he did not receive a follow-up evaluation by the Army due to the deactivation of the 2nd Army Division. d. Due to the period of service, no active-duty electronic medical records were available for review. The applicant submitted no hard copy medical documentation from his time of service evidencing a behavioral health condition. No VA electronic medical records were available for review and the applicant is not service connected. In addition, the applicant did not submit any medical documentation post-military service substantiating his assertion of stress-related issues. e. Based on the information available, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence to support the applicant had a behavioral health diagnosis that mitigates his misconduct. However, per Liberal Consideration guidelines, applicant’s self-assertion of deployment related stressor merits consideration by the board. 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 self-asserts stress-related issues but did not identify any BH condition. (2) Did the condition exist or experience occur during military service? Yes. The applicant reports experiencing stress-related issues related to his deployment. (3) Does the condition or experience actually excuse or mitigate the discharge? No. There is insufficient evidence of any mitigating BH conditions. There is no evidence of any in-service BH diagnoses, and the VA has not service-connected the applicant for any BH condition. And while the applicant self-asserted stress-related issues, during military service, he did not provide any medical documentation evidencing any BH diagnoses. 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 the medical review, the Board concurred with the advising official finding no evidence of any in-service BH diagnoses, and the VA has not service-connected the applicant for any BH condition. Under liberal consideration the Board considered the applicant’s period of service and his self- authored statement. However, the Board found insufficient evidence of in-service mitigating factors to weigh a clemency determination. In addition, the applicant provided no post service achievements or character letters of support to attest to his honorable conduct. 2. The Board agreed the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to an general under honorable conditions discharge. Therefore, the Board determined amending the previous Board decision is without merit and 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 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 to amend the decision of the ABCMR set forth in Docket Number AR20180008747 on 19 July 2019. 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 1556, 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. 2. Army Regulation 635-200, in effect at the time, set forth the primary authority for separating enlisted personnel. a. Chapter 10 states in part, a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice (UCMJ) and the Manual for Court-Martial, include bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial. In addition, the request for discharge may be submitted at any stage in the processing of the charges until the court-martial convening authority's final action on the case. Commanders will also ensure that a member will not be coerced into submitting a request for discharge in lieu of trial by court-martial. The member will be given a reasonable time (not less than 72 hours) to consult with a consulting counsel and to consider the wisdom of submitting such a request for discharge. b. An honorable discharge is a separation with honor. The issuance of an honorable discharge 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 Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An under other than honorable discharge is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct and in lieu of trail by court-martial. 3. On 25?August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including post-traumatic stress disorder; 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. 4. 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, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230005839 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1