IN THE CASE OF: BOARD DATE: 9 February 2021 DOCKET NUMBER: AR20190010687 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Forms 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) administrative decision * Self-written statement FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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. See attachments of the event that occurred do to stressors. He was absent without leave (AWOL) in 1991 and charged with rape. However, his brother-in-law was eventually charged, and he was cleared. His wife was pregnant and they were homeless (kick out of base housing). b. He qualified to play football at, but a Soldier of another race was sent his first sergeant called him out and said he was the ring leader of guns being trafficked from to the unit; at this point his head started to get mixed up, confused, and made him angry. His unit excused the gun situation and it went away in time. He was asleep in his room and punched in the face; he woke up and put five individuals in the hospital after a brutal fight; the applicant received non-judicial punishment (NJP). In 1989 while assigned to Korea, he was diagnosed with post-traumatic stress disorder (PTSD); it was detected due to violent actions. c. When he was assigned to Fort Polk in 1991, he came home after being in the field for 3 weeks, and his wife started crying; the Federal Bureau of Investigation was at home about a rape; he was never arrested for rape, he was only questioned and eventually cleared. He and his wife were put out of post-housing based on the rape incident; his brother-in-law was arrested for the crime; by then his head was gone, distressed, very confused, angry, mad, and enraged. He has never been right since 3. On 2 May 1986, the applicant enlisted in the Regular Army for a period of 3 years. He immediately reenlisted in the Regular Army for a period of 4 years on 11 January 1989. 4. His service record contained documents that show he was AWOL from on or about 19 March 1991 to 16 March 1992. 5. On 24 March 1992, court-martial charges were preferred against the applicant for being AWOL from 19 March 1991 to 16 March 1992. He consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial, its effects, and of the procedures and rights available to him. a. After consulting with legal counsel, the applicant voluntarily requested to be discharged for the good of the service in-lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), because of the preferred charge of AWOL against him. b. He acknowledged he understood that he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran's benefits. c. He elected not to submit statements in his own behalf and did not desire a physical evaluation prior to separation. d. There were no legal objections to the further processing in accordance with the unit commander's recommendations. e. His chain of command recommended approval of his request to be discharged with an UOTHC discharge. f. The separation authority approved the applicant’s request for discharge for the good of the service and directed he be furnished an UOTHC discharge. 6. On 8 May 1992, the applicant was discharged accordingly. His DD Form 214 shows he was discharged under the provisions of chapter 10 of AR 635-200 with an UOTHC. He completed 5 years and 9 days of net active service. He had lost time from 19 March 1991 to 16 March 1992. He was awarded or authorized the Army Achievement Medal (2nd award), Army Good Conduct Medal, and Noncommissioned Officers Professional Development Ribbon. 7. On 31 May 2007, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge and determined he was properly and equitably discharged. 8. The applicant provided a self-written statement described above and a VA administrative decision that shows his honorable and dishonorable service for the purpose of determining entitlement to VA benefits. He also provided 31 pages of medical records and progress notes from the Beckley VA Medical Center that will be reviewed and considered by the Board and Army Review Boards Agency medical staff. 9. Army Regulation 635-200, chapter 10 stated that, a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge 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, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. 10. 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 mental health conditions or experiences which may have contributed to the misconduct that led to the discharge. 11. Army Regulation 635-5 (Separation Documents) prescribes policy and procedures regarding separation documents, it states in the preparation of the DD Form 214 for soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable," enter in item 18 (Remarks) "Continuous Honorable Active Service From (first day of service which DD Form 214 was not issued) until (date before commencement of current enlistment). 12. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 13. Based on the applicant's contention the Army Review Board Agency medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: The applicant is applying to the ABCMR requesting discharge upgrade contending that the misconduct leading to his Under Other Than Honorable Conditions discharge was due to PTSD he developed during his time in the Army. a. The Agency psychologist was asked by the ABCMR to review this request. Documentation reviewed includes the applicant’s completed DD149 and supporting documentation and his military separation packet. The VA electronic medical record, Joint Legacy Viewer (JLV) was reviewed as well. The military electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant’s time in service. Hard copy military medical records and civilian medical documents were not provided for review as well. b. In the ABCMR application (personal statement), he noted his 1st SGT “told me he wasn’t going to send none of my kind there” to play football at. His 1st SGT also accused him of “being the ringleader…guns being trafficking from to our unit” - later excused. He noted another incident, “all of a sudden I got punched two times in the face and it woke me up and I put all five of the unknown to me in the hospital.” He indicated being arrested by the MP’s that involved civilian authorities as well. In an earlier ABCMR application, dated 01 Jun 2006, he claimed, “during my first enlistment at FT Hood I was evaluated by a Psychiatrist and informed that I had non-combat related PTSD. I was also evaluated at Camp Pellam Korea with the same diagnosis. When I had to deal with my wife being vacated out of post housing, I became angered and decided to leave. At the time I was not thinking rationally. I believe the PTSD affected my ability to reason rationally.” In the Supporting Documentation, VA records indicate that he was diagnosed for PTSD, and also for TBI that was based on a truck accident and later a head injury from a metal bar while stationed in Korea. The VA electronic medical record, Joint Legacy Viewer (JLV) indicated a 20% service connected disability with Impaired Hearing 10% and Tinnitus 10%. The Problem List included “Posttraumatic Stress Disorder, Chronic” (24 Jul 2019), “Major Depressive Disorder, Recurrent, Moderate” (19 Oct 2015) and “Headache” (12 Dec 2016). A Mental Health Individual Therapy Note, dated 28 Sep 2020, noted “he believed the racism in society would not be found in the military. While in the Army he was falsely accused on a rape…later exonerated, but the Army never treated him the same after the allegations.” This provider diagnosed him with Depressive Disorder NOS and PTSD. c. Based on the available information and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency psychologist that the applicant has mitigating Behavioral Health conditions, PTSD/TBI. As there is an association between PTSD/TBI and avoidant behavior, there is a nexus between applicant’s diagnosis of PTSD and his absences without leave. The racial discrimination he reportedly experienced likely further contributed to his emotional distress and dissatisfaction with Army life, along with his decision to go AWOL. A Chronological review of his military career indicates a dramatic change in the applicant’s motivation, temperament and level of instability occurred during and after his time in service. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers who develop PTSD/TBI in a non-combat environment. A discharge upgrade is recommended. BOARD DISCUSSION: The Board carefully considered the applicants request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was charged with 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 AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. The Board also considered the review and conclusions of the medical reviewer's assessment that the applicant has mitigating Behavioral Health conditions, PTSD/TBI and that there is a nexus between his diagnosis of PTSD and his absences without leave. The racial discrimination he reportedly experienced likely further contributed to his emotional distress and dissatisfaction with Army life, along with his decision to go AWOL. Based on a preponderance of evidence, the Board found that his service did not rise to the level required for an honorable discharge but a general, under honorable conditions discharge is appropriate in his case. 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. In addition to the administrative notes annotated by the Analyst of Record (below the signature), 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 reissuing him a DD Form 214 for the period ending 8 May 1992 showing his character of service as Under Honorable Conditions, General. 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 upgrading the characterization of his discharge to fully honorable 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): A review of his record shows his DD Form 214 is missing pertinent information. As a result add to item 18 (Remarks) "Continuous Honorable Service from 2 May 1986 until 10 January 1989”. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with 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, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An under other than honorable conditions discharge is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 3. Army Regulation 635-5 (Separation Documents) prescribes policy and procedures regarding separation documents, it states in the preparation of the DD Form 214 for soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable," enter in item 18 (Remarks) "Continuous Honorable Active Service From (first day of service which DD Form 214 was not issued) until (date before commencement of current enlistment). 4. On 3 September 2014, the Secretary of Defense (Honorable Mr. Hagel) directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (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 UOTHC 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. 5. 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 (TBI); 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. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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. 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. 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) AR20190010687 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1