IN THE CASE OF: BOARD DATE: 1 December 2021 DOCKET NUMBER: AR20190014047 APPLICANT REQUESTS: reconsideration of his previous request to upgrade his discharge from an under other than honorable discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record), 28 August 2019 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 AR20110004569, on 2 September 2011. 2. The applicant states: a. His behavioral problems started after his deployment to Operation Desert Storm. Upon his return he had severe depression and mood swings. He constantly stressed over things. He has been taking depression medicine since 2014. b. He joined the Army to become a career Soldier. He went absent without leave (AWOL) due to problems with his estranged wife. His wife called his company commander and informed him he was harassing her. At the time he was embarrassed and he decided to go AWOL. c. He was a good Soldier before going to Iraq. In 2002 he received papers that his unit was exposed to chemicals from exploded bunkers. His unit was in an area of concern, they were also exposed to chemicals in the air from the oil wells burning. He feels this caused his behavioral problems. He has been evaluated. d. He is aware of his conscious decision to not report to work, which led to his AWOL. He has chronic pain, and is taking [prescription]. His symptoms have gotten worst the older he gets. He knew he couldn’t go to veteran affairs due to his other than honorable discharge. (full statement available/enclosed for Board review). 3. Review of his record shows: a. On 21 April 1989, he enlisted in the Regular Army. He completed training and was awarded military occupational specialty 94B (Food Service Specialist). b. He served in Germany from 8 May 1989 to 30 August 1991, and in Saudi Arabia from 24 December 1990 to 4 April 1991. c. He was reassigned to Headquarters and Headquarters Battery, 4th Battalion, 5th Air Defense Artillery, in Fort Hood, TX. d. On 31 January 1992, he was reported in an AWOL status and on 2 March 1991, he was dropped from the Army rolls. He surrendered to military authorities on 4 August 1992. e. On 4 August 1992, court-martial charges were preferred against him. His DD Form 458 (Charge Sheet) shows he was charged with one specification of violating Article 86 for being AWOL from on or about 31 January 1992 to 4 August 1992. f. On 11 August 1992, the applicant consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an Under Other Than Honorable Conditions Discharge if this request is approved, and of the procedures and rights available to him. Following this consultation, the applicant requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request, he acknowledged: * he understood that submitting this request for discharge he acknowledge that he is guilty of the charges against him or of a lesser included offenses therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge * he has been advised and understood the possible effects of an under other than honorable discharge, and that as a result of the issuance of such a discharge he will be deprived of many or all Army benefits that he may be ineligible for many or all benefits administered by the Veterans Administration and he may be deprived of rights and benefits as a veteran under both state and federal law * he also understood that he may expect to encounter substantial prejudice in civilian life because of an Under Other Than Honorable Discharge * he further understood that there is no automatic upgrading nor review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board or the Army Board for Correction of Military Records if he wishes review of his discharge; he realized that the act of consideration by either board does not imply that his discharge will be upgraded * He understood that he may, up until the date the discharge authority approves his discharge, withdraw his acceptance of this discharge g. On 11 September 1992, the immediate commander recommended approval and that an Other Than Honorable Conditions Discharge be issued. h. On 29 September 1992, consistent with the chain of command recommendations, the separation authority approved the applicant's elimination from the service UP of AR 635-200, Chapter 10 and ordered the issuance of an Other Than Honorable Conditions Discharge Certificate and the applicant's reduction to private/E-1. i. The applicant was discharged from active duty on 19 October 1992. His DD Form 214 shows he was discharged UP of AR 635-200, chapter 10, for the good of the service in lieu of court-martial, with the issuance of an under other than honorable certificate. He completed 2 years, 11 months and 27 days of active service. His DD Form 214 also shows he had lost time from 920131-920804. He was awarded or authorized: * Army Service Ribbon * National Defense Service Medal * Overseas Service Ribbon * Sharpshooter Qualification Badge with Rifle Bar (M-16) * Marksman Qualification Badge with Grenade Bar j. On 2 September 2011, the Board denied his request for an upgrade of his discharge and stated: (1) The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court- martial, was administratively correct and in conformance with applicable regulations. The applicant chose to request an administrative discharge rather than risk the consequences of a court-martial. Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date. There is insufficient reason to re-characterize the discharge at this late date. (2) There is no available evidence, and the applicant did not provide sufficient evidence, to justify granting his request. 4. By regulation (AR 635-200), a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. A discharge under other than honorable conditions is normally considered appropriate. 5. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 6. 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 depression and PTSD he developed during his time in service. 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 also reviewed. The military electronic medical record (AHLTA) was not reviewed as it was not in use during his time in service. No hard copy military medical records or civilian medical documentation was provided for review. b. Review of the applicant’s military documentation indicates that he enlisted in the Regular Army on 21 Apr 1989. He was assigned overseas to Germany from 08 May 1989 - 30 Aug 1991. He was also deployed overseas to Saudi Arabia from 24 Dec 1990 - 04 Apr 1991. During his service, his awards included the National Defense Service Medal, Army Service Ribbon and Overseas Ribbon. His job assignment was as a Food Service Specialist. A Charge Sheet cited him for being absent without leave (AWOL) from 31 Jan 1992 - 04 Aug 1992 while assigned to Headquarters and Headquarters Battery, 4th Battalion, 5th Air Defense Artillery, Fort Hood, TX. He submitted a Request for Discharge for the Good of the Service on 11 Aug 1992. He received an Under Other Than Honorable Conditions discharge on 19 Oct 1992 with DD-214 Narrative Reason, For the Good of the Service – In Lieu of Court-Martial. c. The VA electronic medical record, Joint Legacy Viewer (JLV) did not indicate any service connected disability(s). A Mental Health Crisis Intervention Note, dated 29 Aug 2019 indicated, “he stated he started feeling depressed and drinking alcohol when he was deployed in Desert Storm…He stated he has been feeling depressed since that time. He reported irregular sleep patterns, depressed mood, mood swings and isolation…He agreed to a SPC consult for assistance with setting up mental health support.” d. There was no available data on the problem list. e. 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 a mitigating Behavioral Health condition, significant depressive symptoms. As there is an association between depressive symptoms and social withdrawal/isolation, there is a nexus between applicant’s symptoms and his extended period of AWOL from his unit. Also, as there is an association between depressive symptoms and use of alcohol to self-medicate symptoms, there is a nexus between his condition and the pattern of alcohol abusing behavior applicant readily acknowledged. It is also more likely than not that he developed some trauma and stressor related symptoms from his deployment as well, as he so indicated. Chronological review of his military career indicates a dramatic change in the applicant’s motivation, temperament and level of instability occurred following his deployment to Southwest Asia. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers who undergo depressive symptoms in a combat environment. A discharge upgrade is recommended. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that 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, regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. One potential outcome was to deny relief, notwithstanding the medical advisory for an upgrade based on the applicant’s record. However, upon review of the applicant’s petition, available military records and the medical advisory the Board majority concurred with the advising official finding sufficient evidence the applicant has a mitigating Behavioral Health condition. There is an association between depressive symptoms and use of alcohol to self-medicate symptoms, there is a nexus between his condition and the pattern of alcohol abusing behavior applicant readily acknowledged. Based on this, the Board granted relief to upgrade the applicant’s discharge to general under honorable conditions. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 XX XXX : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : XX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as general under honorable conditions. 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. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. A discharge under other than honorable conditions is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade per Army Regulation 600–8–19. 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. 2. On 3 September 2014, the Secretary of Defense 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 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. 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 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; TBI; sexual assault; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. 4. 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) AR20190014047 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1