IN THE CASE OF: BOARD DATE: 20 December 2023 DOCKET NUMBER: AR20230006213 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) * Honorable Discharge Certificate, 8 July 1980 and 26 April 1983 * DA Form 2496 (Disposition Form), 3 April 1984 * DA Form 2166-6 (Enlisted Evaluation Report), 5 September 1984 * UOTHC Discharge Certificate,12 September 1984 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 12 September 1984 * Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), undated * Letter of Support from Therapist to the VA, 27 June 2019 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, Section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He was in a car accident that resulted in the death of another Soldier. He and three other Soldiers, including the deceased, were ejected from the car. He was wrongly accused of driving the vehicle in the accident because the car was registered to him, and the driver of the vehicle, Staff Sergeant (SSG) ., invoked his Fifth Amendment right not to self-incriminate. During the pre-trial, it was discovered that SSG . was lying about not being the driver. However, the Army still decided to discharge him from the military. b. He suffered for 34 years because of his UOTHC discharge. He was unable to get a decent job to support his family and was denied all VA benefits. He believes his discharge from the Army was an injustice because he was separated with no records of a felony or Driving Under the Influence. c. He lists post-traumatic stress disorder (PTSD) and other mental health conditions as issues/conditions related to his request. 3. The applicant enlisted in the Regular Army on 8 February 1977. He served in military occupational specialties 67V (Observation/Scout Helicopter Repair) and 82C (Field Artillery Surveyor). He reenlisted on 9 July 1980 and again on 27 April 1983. 4. The record contains two documents addressing the applicant's involvement in a motor vehicle accident while under the influence of alcohol and his command’s intent to separate him. a. A DA Form 2800 (CID (Criminal Investigation Division) Report of Investigation), dated 3 March 1984, shows, on 4 December 1983, the applicant negligently drove his 1971 Fiat while under the influence of alcohol with a 2.28 mg/ml blood alcohol level, which resulted in a one-car traffic accident and the death of another Soldier. b. A DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action), dated 14 August 1984, shows the applicant’s commander signed off on a Chapter 10 discharge in lieu of a general court-martial. 5. The complete facts and circumstances surrounding his discharge are not available for review. However, his record contains a dully constituted DD Form 214 that shows the following entries of information: a. On 17 December 1991, the applicant was discharged 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, with an UOTHC characterization of service in the grade of E-1. He received a Separation Code of “KFS” and a reenlistment code “3” and “3C.” b. He completed 7 years, 7 months, and 5 days of net active service with 2 years, 1 month, and 27 days of foreign service during the covered period. c. Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows: * Expert, M-16 Rifle * Expert, Hand Grenade * Good Conduct Medal (2nd Award) * Army Commendation Medal * Army Service Ribbon * Overseas Service Ribbon * Aircraft Crewmember Badge * NCO Professional Development Ribbon (2nd Award) d. Block 18 (Remarks) the entry “IMMEDIATE REENLISTMENTS THIS PERIOD: 770208 TO 800709; 800709 TO 830426” 6. The applicant provides: a. Two Honorable Discharge Certificates, confirming his two periods of honorable service listed on his DD Form 214. b. A disposition form and enlisted evaluation report show his platoon leader and his platoon sergeant rated him as outstanding, with regards to his professionalism, duty performance, military appearance, and military bearing. His platoon leader noted, during the time the applicant was assigned to his platoon, prior to and since his involvement in an unfortunate accident involving alcohol, he had shown no signs of having an alcohol abuse problem. He believed it was an isolated incident and not characteristic of the applicant’s normal behavior and personal life. c. A self-authored statement in support of his VA claim, summarizing his involvement in a life changing alcohol related motor vehicle accident resulting in the death of another Soldier and his discharge from the Army. d. A Letter from the applicant’s therapist in support of his VA claim, stating the applicant has been receiving counseling services at the Steven A. Cohen Military Family Clinic since 6 November 2018 for the following behavioral health issues that severely impact his functioning within his family and other social relationships/situations, were directly related to a traumatic experience while a member of the Army: * low self-esteem * anxiety attacks * mood swings * increased stress * social anxiety * depression * self-isolating behaviors * PTSD * moderate anxiety * generalized anxiety disorder * moderate depression * clinical insomnia-moderate 7. The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. He provides no evidence that would indicate the contrary. 8. 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. 9. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted in the Regular Army on 8 February 1977; 2) A DA Form 2800 (CID (Criminal Investigation Division) Report of Investigation), dated 3 March 1984, shows, on 4 December 1983, the applicant negligently drove his 1971 Fiat while under the influence of alcohol with a 2.28 mg/ml blood alcohol level, which resulted in a one-car traffic accident and the death of another Soldier; 3) On 17 December 1991, the applicant was discharged, Chapter 10, for the good of the service in lieu of trial by court- martial, with an UOTHC characterization of service c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and available military service records. The VA’s Joint Legacy Viewer (JLV) and civilian medical documents were also examined. d. The applicant asserts he experienced mental health conditions, including PTSD as the result of a fatal car accident he was involved in with other Soldiers, while on active service. There was insufficient evidence the applicant reported mental health symptoms while on active service. A review of JLV provided evidence the applicant reported PTSD symptoms in 2018 related to the fatal car accident he was involved in, which resulted in his discharge, and the applicant was diagnosed with PTSD and Depression. The applicant receives no service-connected disability. He also provided civilian behavioral health documentation, which indicated he scored highly on measures of PTSD and other behavioral health self-report measures and attended behavioral health treatment in 2018. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence the applicant experienced mental health conditions including PTSD after the fatal car accident, which occurred during his active service. However, there is insufficient evidence the applicant is reporting these conditions occurred prior to or mitigate his misconduct. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? No, there is sufficient evidence the applicant experienced mental health conditions including PTSD after the fatal car accident, which occurred during his active service. However, there is insufficient evidence the applicant is reporting these conditions occurred prior to or mitigate his misconduct, which he denies. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition experience actually excuse or mitigate the discharge? N/A BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was 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 sufficient evidence the applicant experienced mental health conditions including PTSD after the fatal car accident, which occurred during his active service. However, there is insufficient evidence the applicant is reporting these conditions occurred prior to or mitigate his misconduct. The Board noted there was insufficient evidence the applicant reported mental health symptoms while on active service. 2. The Board considered the applicant’s letter of support although the applicant provided no post service achievements for the Board to weigh. The Board determined there is insufficient evidence of in-service mitigating factors to overcome the misconduct. However, during deliberation, the Board determined the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately show his period of honorable service by granting a partial upgrade. ? 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 a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional entries in item 18 (Remarks) of the applicant’s DD Form 214 for the period ending 12 September 1984: * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE SERVICE FROM 770208 UNTIL 830426 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade of his under other than honorable conditions (UOTHC) characterization of service. 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 NOTE(S): N/A ? REFERENCES: 1. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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. 3. 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. 4. 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. 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 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) AR20230006213 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1